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THE 


LAW    OF    RAILWAYS: 


EMBRAOIKO 


CORPORATIONS,    EMINENT    DOMAIN,     CONTRACTS, 

COMMON  CARRIERS  OF  GOODS  AND  PASSENGERS, 

TELEGRAPH  COMPANIES,  CONSTITUTIONAL 


LAW,  INVESTMENTS,  &c.,  &c 


BY 


'-  /  r^  / 


ISAAC  F.  REDFIELD,  LL.D., 

CHIEF  JCSTICB  OF  VERMONT. 


FOURTH    EDITION,    GREATLY     ENLARGED. 


VOL.  I. 


BOSTON: 
LITTLE,    BROWN,   AND    COMPANY. 

18G9. 


Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

Isaac  F.  Redfield, 

In  tlie  Clerk's  Office  of  the  District  Court  of  the  District  of  Vermont. 

Entered  according  to  Act  of  Congress,  in  the  year  1858,  by 

Isaac  F.  Redfield, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Vermont. 

Entered  according  to  Act  of  Congress,  in  the  year  1867,  by 

Isaac  F.  Redfield, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 

Entered  according  to  Act  of  Congress,  in  the  year  1869,  by 

Isaac  F.  Redfield, 

In  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


CAMBRIDGE: 
FOKSS  OF  JOHN  WILSON  AND  BON. 


^ 

ri 


PREFACE   TO    THE   FOURTH    EDITION. 


In  presenting  this  edition  of  our  first  book  to  the  pro- 
fession, we  have  to  crave  the  indulgence  of  an  elder 
brother,  in  alluding  briefly  to  the  origin  and  history  of  the 
work.  The  book  was  undertaken  at  a  period  when  we  had  it 
in  our  power  to  command  considerable  portions  of  time,  in 
every  year,  for  uninterrupted  study.  The  work  was  there- 
fore prepared  ^vith  great  labor  and  care ;  and  so  carefully 
printed  as  to  attract  special  attention  abroad  on  that  account. 
It  was  everywhere  received  in  a  spirit,  and  with  a  degree  of 
cordial  commendation,  both  at  home  and  abroad,  which  the 
author  had  scarcely  dared  to  expect.  But  it  was  gratifying 
to  feel  that  his  eff"orts  to  give  the  entire  law  upon  every 
topic  he  touched,  as  fully  as  if  a  special  brief  had  been  pre- 
pared upon  the  particular  points,  and,  as  nearly,  as  might 
be  allowable,  in  the  form  of  successive  judicial  opinions 
upon  the  several  subjects,  was  duly  appreciated  by  the  pro- 
fession, or  certainly  by  those  who  had  leisure  and  oppor- 
tunity to  examine  the  work  carefully. 

But  for  some  reasons  the  first  two  editions  did  not  obtain 
so  extensive  a  sale  as  to  become  at  all  remunerative  for  the 
very  large  amount  of  labor  bestowed.     This  led  us  to  sus- 


IV  PREFACE  TO   THE   FOURTH   EDITION. 

pect  that  the  baldness  of  our  title,  "  The  Law  of  Railways," 
might  have  led  the  mass  of  the  profession,  who  were  not 
much  engaged  in  railway  litigation,  to  suppose  that  our 
book  treated  of  no  other  topics.  We  were  conviriced  that 
the  book  was  not  generally  understood  to  comprehend  com- 
pact treatises  upon  Corporations  ;  Eminent  Domain  ;  Con- 
tracts FOR  Construction  ;  Mandamus  ;  Certiorari  ;  Equi- 
table Control  of  Public  Works  ;  Taxation  ;  Indictments 
against  Corporations  ;  Quo  Warranto  ;  Constitutional 
Questions  affecting  Legislative  Grants  ;  Investments, 
Stocks,  Mortgages,  Police,  Amalgamation,  &c.,  as  well  as 
all  other  matters  in  the  law,  more  exclusively  affecting  rail- 
ways. 

When  the  third  edition  was  called  for,  we  resolved  to 
make  the  treatment  of  the  above  topics,  and  all  others  in  the 
book,  as  complete  as  possible ;  and  to  that  end  had  expend- 
ed a  large  amount  of  labor ;  but  before  the  work  was  more 
than  half  through  the  press,  we  received  an  unexpected 
public  appointment  abroad,  which  compelled  us  to  push  the 
first  half  of  the  second  volume  through  the  press,  in  a  few 
days,  and  to  leave  the  remaining  materials  in  very  judicious 
hands,  to  be  used  as  far  as  needful  in  completing  the  volume 
in  proper  size ;  and  which  we  are  happy  to  say  was  exceed- 
ingly well  done.  But  the  difficulty  in  knowing  precisely 
what  to  omit,  in  our  absence,  led  to  the  natural  result  of 
using  the  whole ;  which  swelled  the  second  volume  to  some- 
what unwieldy  proportions ;  and  presented  some  matters, 
which  we  had  originally  prepared  for  other  occasions,  in  a 
shape  not  fully  assimilated  to  the  present  work. 

By  enlarging  in  the  present  edition  the  scope  of  the  work 
on  CojDioN  Carriers  of  Goods  and  Passengers,  and  Tele- 


PREFACE  TO  THE  FOURTH  EDITION.  Y 

GRAPHS,  SO  as  to  embrace  the  entire  range  of  those  topics, 
and  form  complete  treatises  upon  those  important  subjects, 
and  nearly  so  upon  all  the  subjects  treated ;  we  are  now 
enabled  to  omit  all  matter  contained  in  the  third  edition,  not 
enthely  in  harmony  with  the  plan  of  the  work.  This  mat- 
ter will  be  .published  soon,  in  a  separate  volume  of  leading 
cases  and  opinions  upon  the  Law  of  Railways,  with  extensive 
notes,  as  a  supplement  to  the  main  work,  but  sold  separately 
to  such  as  may  desire  it,  whether  with  or  without  the  main 
work. 

As  this  edition  is  but  the  carrying  out  of  our  original 
purpose  in  regard  to  the  thud  edition,  by  perfecting  the 
treatment  of  each  topic,  so  as  to  embrace  complete  treatises 
upon  each,  and  extending  the  title  so  as  to  give  some  hint 
of  what  the  book  contains ;  it  may  be  proper  to  add,  that 
the  third  edition  met  with  a  very  extended  and  rapid  sale, 
80  as  to  prove  more  remunerative  to  the  author  in  two 
years  than  in  the  ten  preceding  years.  And  as  the  work 
seems  now  to  have  obtained  the  very  general  confidence  of 
the  profession  at  home,  and  as  the  author  has  received  many 
vei7  flattering  testimonials  in  regard  to  the  last  edition, 
while  abroad,  he  trusts  no  apology  will  be  required  for 
quoting  a  brief  extiact  from  that  of  the  Lord  Chief  Justice 
of  England,  especially  as  it  breathes  so  much  of  that  cordial 
fraternal  spirit  towards  his  American  brothers,  engaged  in 
the  same  great  field  of  labor,  and  which  it  will  be  the  pleas- 
ure of  every  noble  hearted  and  cultivated  patriot,  in  this 
country,  to  reciprocate. 

His  Lordship  says,  in  regard  to  the  AVills  and  Railways : 
"  Having  now  read  the  books  through,  I  beg,  in  offering 
you  my  most  sincere  thanks  for  your  gift,  to  add  the  expres- 


VI  PREFACE  TO   THE   FOURTH  EDITION. 

sion  of  my  admiration  for  the  great  learning,  research,  and 
power  of  reasoning,  displayed  in  these  valuable  treatises. 
They  must,  I  am  convinced,  prove  standard  works  on  the 
subjects  of  which  they  treat,  and  must  prove  a  very  valuable 
addition  to  the  juridical  literature,  which,  I  am  happy  to 
think,  is  common  to  our  two  countries.  America  may  in- 
deed be  proud  of  her  jurists,  who  have  done  so  much  for 
the  promotion  of  legal  science." 

We  cannot  but  feel  some  well  grounded  trust,  that  the 
present  edition  will  be  found  useful  to  the  general  practi- 
tioner, who  desires  to  have,  always  at  hand,  in  compact 
form,  the  synopsis  of  the  law  upon  the  many  important 
topics  discussed  in  these  two  volumes.  And  to  that  end  we 
have  done  all  in  our  power  to  make  the  book  as  complete 
as  possible.  There  will,  no  doubt,  be  found  some  errors 
and  defects,  since  it  is  not  possible  to  exclude  all  errors 
from  so  extended  and  complicated  a  work,  or  to  have  it 
contain  all  that  every  one  would  most  desire.  If  it  shall 
prove  a  reasonably  successful  accomplishment  of  the  author's 
purpose,  it  will  be  a  sufficient  reward  for  a  large  amount 
of  labor,  through  many  years,  which  no  faithful  book-maker, 
in  the  profession  of  the  law,  can  reasonably  expect  to  have 

fully  compensated  in  any  other  mode. 

I.  F.  R. 
Boston,  Sept.  1,  1869. 


PREFACE. 


Tms  work  was  undei*taken  with  the  purpose  of  supplying, 
what  seemed  to  the  writer  a  want,  if  not  a  necessity,  to  the 
profession  in  this  country ;  a  book  upon  the  law  of  railways, 
which  should  present,  within  reasonable  compass,  and  in  a 
properly  digested  form,  the  whole  law  upon  the  subject, 
both  English  and  American.  No  treatise  had  attempted 
this.  And  the  attempt  has  confirmed  the  expectation,  that 
the  accomplishment  of  such  an  undertaking  would  be  attend- 
ed with  labor  and  perplexity. 

It  seems  desirable  that  such  a  work  should  present  every 
case  which  has  been  decided  in  both  countries,  in  such  a 
form  as  to  make  the  point  of  decision  plain  and  obvious,  and 
at  the  same  time  not  convert  a  treatise  into  a  mere  digest. 
A  mere  treatise,  too,  upon  the  principles  involved  in  the 
several  departments  of  the  law  brought  under  discussion  in 
such  a  work,  would  be  of  little  benefit  except  to  the  student. 
This,  too,  will  be  found  in  the  approved  treatises  ah'cady 
published  upon  these  several  subjects.  On  the  other  hand, 
a  digest  of  the  cases  upon  any  plan,  however  comprehensive 
or  philosophical  might  be  the  analysis,  would  appear  an 
unsatisfactoi7  labor  when  we  have  already  so  much  of  the 
kind. 

It  is  the  endeavor  of  this  undertaking  to  combine  the  two 
in  such  a  manner  as  to  render  the  work  intelligible,  and 
interesting  as  an  exposition  of  the  principles  involved  ;  and 
at  the  same  time  present  a  thorough  analysis  and  digest  of 
all  the  important  cases  upon  the  subject,  in  such  a  manner 
as  to  enable  the  reader  at  once  to  know  the  result  of  all  the 
decisions  upon  the  several  topics  discussed. 


VIU  PREFACE. 

The  plan  of  the  work  is  mainly  new,  and  the  effort  has 
been  to  render  it  natural,  simple,  and  comprehensive.  The 
manner  of  arranging  the  heads  to  the  several  subdivisions 
has  been  adopted  chiefly  with  a  view  to  enable  the  profes- 
sion to  find  at  once  whatever  the  work  contains  upon  any 
topic  or  question. 

How  far  the  design  of  the  author  has  been  accomplished, 
he  submits  to  the  indulgent  judgment  of  his  professional 
brethren  who  have  hitherto  shown  him  so  much  forbear- 
ance. In  justice  to  himself,  perhaps  it  should  be  here  men- 
tioned, that  the  work  has  been  prepared  under  some 
disadvantages,  from  the  constant  pressure  of  ofiicial  duties 
which  could  not  be  requu-ed  to  accommodate  themselves,  in 
any  respect,  to  the  demands  of  this  subordinate  labor.  It 
has  thus  happened,  that,  although  a  considerable  time  has 
elapsed  since  the  work  was  seriously  taken  in  hand,  it  has 
of  necessity  been  done,  to  a  great  extent,  at  such  intervals, 
more  or  less  extensive,  as  circumstances  would  allow  the 
writer  to  command,  and  always  in  haste. 

If  some  mistakes  should  be  discovered,  therefore,  and 
some  graver  faults  even,  it  is  hoped  that  the  profession  will 
bear  with  them  ;  with  the  assurance  that,  if  the  work  should 
be  found  of  sufficient  importance  to  require  another  edition, 
they  will  be  corrected ;  and  that,  if  no  such  demand  should 
be  made,  the  work  has  probably  received  as  much  labor  as 
it  deserves. 

I.  F.  R. 
Windsor,  Vt.,  Nov.  20,  1857. 


ANALYSIS    OF    THE    CONTENTS. 


g^"  The  citations  to  other  portions  of  the  work  are  thus  expressed,  ^  —  pi.  n.  — .  and  the 
^^  are  placed  in  the  inner  marfrin  of  the  paces,  for  convenience  of  reference.  The 
paging  of  the  third  edition  is  preserved  in  this  edition  at  the  bottom  of  the  page. 


CHAPTER  I. 

INTRODUCTION. 

FAOa 

1,  Origin  of  railways  in  England 1 

2.  First  built  upon  one's  own  land,  or  by  special  license  from  the  owner  .  2 

8.  Questions  in  regard  to  private  railways 2 

4.  Railways  in  America,  public  grants 3 

6.  Use  of  steam-power  on  railways 3 

6.  The  franchise  of  a  railway  not  necessarily  corporate  nor  unassignable  .  4 


CHAPTER  n. 

PUBUC  RAILWAYS  AS  CORPORATIONS. — PREUMINARY  A880CL1TION8. 

SECTION     I. 
MODB  OF  IK8TITUTIKO    RAILWAY   PROJECTS. 

1.  Subscribers'  Associations  in  England 6 

2.  Subscribers  bound  by  subsequent  charter 6,  6 

3.  Issue  and  registry  of  scrip  certificates 6 

4.  Origina'  subscriber  liable  to  unregistered  purchaser 6 

6.  Holders  of  scrip  entitled  to  registry 6,  7 

"  6.  Preliminary  associations  not  common  in  this  country 7 

7.  Petitioners  for  incorporation  file  plan  and  surveys 7 

8.  Present  English  statutes 7,  8 

9.  Preliminary  associations  may  be  registered 8 

10.  Not  now  held  responsible  as  partners  in  England 8 

SECTION   IL 

COHTRACT8  OV  THB  PROMOTERS  HOT  BIHDINO   AT   LAW   VTOK  THE   COMPANY. 

1.  In  this  country  promoters  only  bind  themselves  and  their  associates     .  9,  10 

2.  Contracts  of  promoters  not  enforciblc  by  company 10,  11 

3.  But  by  consenting  to  a  decree  in  equity  scttmg  up  the  contract,  the 

company  will  be  held  to  have  adopted  it 11 


X  ANALYSIS   OP  THE  CONTENTS. 

SECTION  III. 

SUBSCBIBBRB   TO   THE   PRELIUINART  jLSSOCIATIOK   INTER  SESB. 

1.  Liability  for  acts  of  directors  limited  by  terms  of  subscription    ...       11 

2.  Association  not  binding  until  preliminaries  are  complied  with     .     ,      11,  12 
8.  Contracts,  how  far  controlled  by  oral  representations  of  directors  .     .       12 

4.  Subscribers  not  excused  by  directors  from  paying  calls 12 

6.  Not  liable  for  expenses  except  by  terms  of  agreement 12 

6.  Deeds  of  association  generally  make  provision 13 

7.  One  who  obtains  shares  without  executing  the  deed  not  bound  to 

contribute 13 

n.  11.  No  relation  of  general  partnership  subsists  between  subscribers     13-15 

SECTION  IV. 

CONTRACTS  OF  THE  PROMOTERS  ADOPTED  BY  THE  COMPANY. 

1.  Liability  may  be  transferred  with  assent  of  creditors 14-16 

n.  3.  Powers  of  provisional  company  to  contract  limited  by  statute      .     15,  16 

V. 

HOW    CONTRACTS    OF   THE    PROMOTERS    MAY   BE  aADOPTBD  BY   THE   COMPANY. 

Cannot  assume  the  benefit  without  the  burden 16 

VI. 

CONTRACTS   BETWEEN   THE   PROMOTERS    AND    OPPOSER8   OF   A   BILL    FOB   THE 
CHARTER    OF    A    RAILWAY. 

1.  English  cases  numerous 17 

2-5.  Lord  Eldon's  opinion  in  the  case  of  Vauxhall  Bridge  Co.    .     .     .      17-19 

VII. 

CONTRACTS   OF   THE    PROMOTERS   ENFORCED   IN   EQUITY. 

1-3.  Case  of  Edwards  v.  Grand  Junction  Railway 19-22 

VIII. 

CONTRACTS   0^   THE   PROMOTERS   BINDING   UPON   THE    COMPANY   AT   LAW. 

1-3.  Case  of  Howden  v.  Simpson 22-24 

SECTION  IX. 

WHAT  CONTRACTS  BETWEEN  THE  PROMOTERS  OF  RAILWAYS  AND  OTHERS  WILL  BE 
ENFORCED,  EITHER  IN  LAW  OR  EQUITY,  AGAINST  THE  CONTRACTING  PARTIES 
OR   THE    COMPANY. 

1.  Contract  to  take  land  of  opposing  party 24 

2.  Contract  prejudicial  to  the  public 26 

SECTION  X. 

COURTS  OF  EQUITY  WILL  ENFORCE  CONTRACTS  WITH  THE  PROMOTERS. 

1.  5ona  _/?(Zc  contract,  not  evading  statute,  valid     .  25 

n.  3.  Statement  of  English  cases ....      25-36 


ANALYSIS   OP  THE   CONTENTS.  XI 

SECTION  XI. 

SUCH  CONTRACTS  ENFORCED   WHERE  THE   RAILWAY   IS   ABAKDOXED. 

1.  Where  a  certain  sum  is  to  be  paid  to  quiet  opposition 26-32 

2.  Merely  provisional  contracts  not  always  enforced 33-38 

SECTION  XII. 

PRACTICE   OF   COCRTS   OF   EQUITY    IN   DECREEING    SPECIFIC   PERFORMANCE. 

1.  Mutual  arrangements  protected  in  chancery 38 

2.  But  decisions  are  conflicting.     In  cases  of  doubtful  right,  plaintiff  is 

remitted  to  common-law  remedies 38,  39 

n.  2.  Statement  of  cases 38-42 

SECTION  XIII. 

SPECIFIC   PERFORMANCE   IN   COURTS   OF   EQUITY. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made    .      40-43 

SECTION  XIV. 

COURTS  OF  EQUITY  WILL   RESTRAIN  A  PARTY   FROM   OPPOSITION   OR  PETITION   IN 

PARLIAMENT. 

1.  Such  cases  not  common  in  practice 43,  44 

2.  Such  cases  are  not  readily  recognized 44 

•     SECTION  XV. 

CONTRACTS   TO   WITHDRAW   OPPOSITION   TO  RAILWAY  PROJECTS   AND    TO  KEEP  THIS 
SECRET,   AGAINST   SOUND   POLICY,   AND    SEEM    TO   BE   ILLEGAL. 

1.  Principle  of  foregoing  decisions  obscure 44,45 

2.  Not  adopted  in  this  country  unless  terms  inserted  in  charter  .     .     .     45,  46 

3.  Recent  change  of  views  in  English  courts 46 

8-5.  Statement  of  late  case  in  which  principle  of  Edwards  v.  Grand  Junc- 
tion Ilailway  is  doubted 46 

6.  Act  of  incorporation  should  not  be  varied  by  oral  testimony  ...     46,  47 

7.  Contracts  to  quiet  opposition  not  favored  in  this  country 47 

n.  5.  Recent  English  and  American  decisions 47,  48 

8.  Regarded  as  ultra  vires 48,  49 

9.  May  be  enforced,  if  legislature  not  exposed  to  be  misled 49 

CHAPTER  m. 

RAILWAYS   AS  CORPORATIONS. 

SECTION    I. 
ORIGIN   AND  DIFFERENT   CLASSES   OF  CORPORATIONS. 

1.  The  existence  of  corporations  dates  very  early 60 

2.  The  different  kinds  of  corporations,  sole  and  aggregate     ....     50,51 

3.  This  work  treats  principally  of  aggregate  joint-stock  corporations  .     .       51 

4.  Corporations  are  either  ecclesiastical  or  lay    .     .     , 51 

5.  So  they  are  divided  into  eleemosynary  and  civil  corporations      ...       52 

6.  Corporations  are  public  or  private 62 


Xll  ANALYSIS   OF   THE   CONTENTS. 

7.  Private  corporations  where  stock  is  private  property 62 

8.  Public  corporations  where  stock  is  owned  and  management  retained  by 

the  State 52,  53 

9.  It  does  not  affect  the  private  character  of  a  corporation  that  the  State 

or  the  United  States  own  a  portion  of  the  stock 54,  56 

SECTION  II.  ■  , 

HOW  CORPORATIONS  ARE  CREATED. 

1.  Corporations  created  by  grant  of  the  sovereignty.    This  may  be  proved 

by  implication  or  by  presumption 55,  56 

2.  The  sovereignty  may  establiiih  corporations  by  general  act,  or  by  dele- 

gation or  procuration 56 

3.  Different  forms  of  defining  a  corporation 56 

4.  The  corporate  action  of  corporations  restricted  to  State  creating  them    56,  57 

5.  It  may  act  by  its  directors  and  agents  in  other  States 57,  58 

n.  10.  But  cannot  properly  transfer  its  entire  business  to  another  place     .       57 

6.  A  college  located  at  one  place  cannot  establish  a  branch  at  another      .       68 

SECTION  III. 

THE    CONSTITUTION   OF    CORPORATIONS. 

1.  Definitions  of  the  different  sense  of  the  term  constitution,  as  applied  to 

corporations 58,  59 

2.  How  corporations  may  be  composed  or  constituted 59 

n.  1.  The  question  illustrated  more  in  detail 59 

3.  Distinction  of  legislative,  electoral,  and  administrative  assemblies  not 

essential 59 

4.  Corporation  can  only  act  by  its  name.     Subject  discussed      .     .     .     59,  60 

5.  Any  deviation  from  the  name  allowed,  if  the  substance  and  sense  be 

preserved 60 

6.  Courts  of  equity  will  not  restrain   corporations   from  applying  for 

enlarged  powers 60,  61 

7.  Change  of  constitution.     Effect  of  change  of  name 61 

8.  Courts  of  equity  will  enjoin  a  new  corporation  from  assuming  the  name 

of  one  of  established  credit 61 

9.  Promissory  note  payable  to  A.  B.,  treasurer  of  a  corporation,  may  be 

sued  in  the  name  of  A.  B.     Promissory  note  for  subscription  waives 
condition 62 

10.  Corporation  may  be  estopped  to  deny  its  existence.     How  described  .       62 

11.  How  the  existence  and  non-existence  of  corporations  may  be  proved    .       62 

12.  Party  to  written  contract,  payable  to  corporation,  cannot  deny  cor- 

porate existence 62,  63 

13.  Proof  of  corporation  in  fact  sufl&cient  in  all  cases 63 


CHAPTER  IV. 

PROCEEDINGS  UNDER  THE  CHARTER. 

SECTION  I. 

ORGANIZATION  OF  THE  COMPANY. 

1.  Conditions  precedent  must  be  performed 64 

2.  Stock  must  all  be  subscribed,  ordinarily 65 

3.  Charter,  location  of  road,  condition  precedent 65 

4.  Colorable  subscriptions  binding  at  law 65,  66 


ANALYSIS   OP  THE  CONTENTS.  Xlll 

6.  Conditions  subsequent,  how  enforced 66 

6.  Stock  distributed  accordin;?  to  charter 66 

7.  Commissioners  must  all  act 66,  67 

8.  Defect  of  organization  must  be  pleaded  specially 67 

9.  Question  cannot  be  raised  collaterally 67 

10.  Records  of  company,  evidence 67,  68 

11.  Membership  how  maintained 68 

12.  By  subscription  and  transfer  of  shares 69 

13.  Offers  to  take  shares  not  enforced  in  equity,  and  may  be  withdrawn     .       69 

SECTION  n. 

ACCBFTANCB  Or  CHARTER,   OR  OF   XODIFICATIOS   OF   IT. 

1.  New  or  altered  charter  must  be  formally  accepted 69,  70 

2.  Subscription  for  stock  sometimes  sufficient 70 

8.  Inoperative  unless  done  as  required 70 

4.  Assent  to  beneficial  grant  presumed 70 

5.  Matter  of  presumption  ana  inference 70 

6.  Organization  or  acceptance  of  charter  may  be  shown  by  parol    ...       70 

7.  Corporators  assenting  are  bound 70,  71 

8.  Charter  subject  to  recall  until  accepted 71 

SECTION  ni. 

ORDINARY   POWERS.  —  CONTROL  OF  MAJORITY. 

1.  Ordinary  franchise  of  railways 71,  72 

2,  3.  Majority  control,  unless  restrained 72 

4.  Cannot  change  organic  law 72,  73 

5.  Except  in  the  prescribed  mode 73 

6.  Cannot  accept  amended  charter 73 

7.  Or  dissolve  corporation 73 

8.  May  obtain  enlarged  powers 74 

9.  Courts  of  equity  will  not  restrain  the  use  of  their  funds  for  that  purpose       74 

10.  But  will,  if  to  convert  canal  into  railway 74 

11.  Right  to  interfere  lost  by  acquiescence 74,  75 

12.  Acquiescence  of  one  plaintiff,  fatal 75 

13.  Railway  a  public  trust 75,  76 

14.  Suit  maintained  by  rival  interest 76 

15.  Courts  of  equity  will  not  restrain  the  majority  from  winding  up  unless 

for  fraud,  &c 76 

SECTION  IV. 

N  MEETINGS  OF  COMPANY. 

1.  Meetings,  special  and  general 77 

2.  Special,  must  be  notified  as  required 77 

8.  Special  and  impoi-tant  matters,  named  in  notice 77,  78 

4.  Notice  of  general  meetings  need  not  name  business 78 

6.  Adjourned  meeting,  still  the  same 78,  79 

6.  Company  acts  by  meetings,  by  directors,  by  agents 79 

7.  Courts  presume  meetings  held  at  proper  place 79 

8.  Every  stockholder  may  vote,  but  not  by  proxy 79 

SECTION  V. 

ELECTION  OF   DIRECTORS. 

1.  Should  be  at  general  meeting,  or  upon  special  notice 80 


XIV  ANALYSIS   OP  THE   CONTENTS. 

2.  Shareholders  may  restrain  their  authority 80,  81 

3.  Company  bound  by  act  of  directors,  de  facto 81 

4.  Act  of  officer  de  facto,  binds  third  persons 81,  82 

SECTION  VI. 

MEETINGS   OF  DIBECTORS. 

1.  All  should  be  notified  to  attend 82 

2.  Adjourned  meeting  still  the  same 83 

8.  Board  not  required  to  be  kept  full 83 

4.  Usurpations  tried  by  shareholders  or  courts 83 

6.  Usa^e  will  often  excuse  irregularities 83 

6.  Decisions  of  majority  valid 83,  84 

n.  8.  Recoi-ds  of  proceedings,  evidence 84 

7.  The  action  must  be  taken  at  a  formal  meeting 85 

SECTION  VIL 

QT7ALIFICAT10X    OF   DIRECTORS. 

1.  One  cannot  be  a  contractor  and  director 85 

2.  May  be  their  banker  and  director 85 

3.  May  be  director  by  virtue  of  stock  mortgaged 85 

4.  Bankruptcy  or  absence  will  not  vacate  office 85,  86 

6.  Company  compelled  to  fill  vacancies  in  board 86 


CHAPTER  V. 

PREROGATIVE   FRANCHISES. 

1.  Control  of  internal  communication  in  a  state  a  prerogative  franchise      87 

2.  Such  a  grant  confers  powers  pertaining  exclusively  to  sovereignty,  as 

taking  toUs,  and  the  right  of  eminent  domain 87 


CHAPTER  VI. 

BT-LAWS   AXD   STATUTES. 

SECTION    I. 
POWER  OF   MAKING   BT-LAWS   OR   STATUTES. 

1.  May  control  conduct  of  passengers 88 

2.  Must  be  reasonable  and  not  against  law 88,  89 

3.  Power  may  be  implied,  where  not  express 89 

4.  Not  required  to  be  in  any  particular  Ibrm  unless  by  special  provision  .       89 

6.  Model  code  of  by-laws  framed  by  board  of  trade  in  England     ...       90 

7.  Company  may  demand  higher  fare  if  paid  in  cars 91 

8.  Public  statutes  control  by-laws 91,  92 

9.  Cannot  impose  penalty 92 

10.  Cannot  refuse  to  be  responsible  for  baggage 92 

11.  Statutes  operate  upon  members  from  promulgation;  upon  others,  from 

knowledge  of  the  same 92 

12.  Regulations,  for  accommodation  of  passengers,   must  yield  to  the 

right  of  others  to  be  carried 92,  93 


ANALYSIS  OP  THE   CONTENTS.  XV 

SECTION  n. 

BT-XJk.W8  BEOCLATIKO   TBB   USE   OF  STATIONS  AXD   GROUITDS. 

1.  May  exclude  persons  without  business 93,  94 

2.  May  regulate  the  conduct  of  others 94 

8.  Superintendent  may  expel  for  violation  of  rules 94 

4.  Probable  cause  will  justify 94 

6.  In  civil  suit  must  prove  violation  of  rules 94-96 

6.  Regulation  of  stations  and  traffic  by  means  of  injunction.     Equality 

of  charges 96 

7.  Through  trains  will  not  be  required  unless  reasonably  necessary  for 

public  accommodation 97 

8.  Mode  of  enforcing  search  warrants  in  freight  stations 97 

9.  The  right  of  railway  companies  to  exclude  persons  having  no  business 

from  their  stations 97 

SECTION  IIL 

BT-LA.W8  AS  TO  PASSENGEHS. 

1.  By-laws  as  statutes 98 

2.  As  mere  rules,  or  regulations 98,  99 

3.  Requiring  larger  fares  for  shorter  distances 99 

4.  Requiring  passengers  to  go  through  in  same  train 99-102 

6.  Arrest  of  passenger  by  company's  servants 102 

7.  Company  liable  for  act  of  servant 103 

8.  By-law  must  be  published 103 

9.  Excluding  merchandise  from  passenger  trains 103,  104 

10.  Discrimination  between  fares  paid  in  cars  and  at  stations 104 

11.  Liability  for  excess  of  force 106 

12.  Office  at  facto  may  enforce  rules  of  company 106 

13.  Company  cannot  enforce  rule  against  passenger,  when  in  fault  them- 

selves.    The  consent  of  the  company  to  tariff  of  fares  how  pre- 
sumed      106, 107 

14.  Discrimination  on  the  ground  of  color 107 


CHAPTER  Vn. 

V  CAPITAL  STOCK. 

SECTION  I. 

LmiTATIOirS. 

1.  General  rights  of  shareholders 108 

2.  Capital  stock  not  the  limit  of  property 108 

3.  Cannot  mortgage,  unless  on  special  license  of  the  legislature     .     .  108,  109 

SECTION  II. 

OOKDITIOHa  PRECEDEITT,  WHICH  THE   PUBLIC   AUTHORITIES   MAT  EKFOHCB. 

1.  Stock,  if  limited,  must  all  be  subscribed 109 

2.  Payments  at  time  of  subscription 109,  110 


XVI  ANALYSIS   OF  THE   CONTENTS. 

SECTION  m. 

SHARES  PERSONAL  ESTATE. 

1.  Railway  shares  personal  estate  at  common  law 110,  111 

2.  Not  an  interest  growing  out  of  land,  or  goods,  wares,  and  merchandise     111 

3.  Early  cases  treated  such  shares  as  real  estate Ill,  112 


CHAPTER  Vm. 

TRAIfSFER  OF   SHARES. 

SECTION    I. 
RESTRICTIONS   UPON   TRANSFER. 

1.  Express  provisions  of  charter  to  be  observed 113- 

2.  If  not  made  exclusive,  held  directory  merely 114,115 

3.  Unusual  and  inconvenient  restrictions  void 115,  116 

4.  But  a  lien  upon  stock  for  the  indebtedness  of  the  owner  is  valid  .     .  116,  117 

6.  But  such  lien  is  not  implied 118 

6.  Where  transfer  is  wrongfully  refused,  vendee  may  recover  value  of  the 

company 119 

SECTION  II. 

CONTRACTS  TO  TRANSFER  STOCK. 

1.  Transfer  under  English  statutes.     Registered  companies  .     .     .     .119,  120 

2.  Contracts  to  transfer  stock  valid,  where  bona  fide 120 

3.  Vendor  must  have  the  stock,  when  due 120,  121 

n.  3.  Vendor  must  procure  the  consent  of  directors,  where  requisite     .     .     120 

4.  Force  of  usages  of  stock  exchange 121 

5.  Company  will  reform  the  registry  at  its  peril 122 

6.  10.  Company  may  compel  one  to  accept  shares  on  contract    .     .     .  122,  123 

7.  Stock  standing  in  joint  names  belongs  to  survivors 122 

8.  Mode  and  effect  of  correcting  registry 122 

9.  If  the  company  vary  the  contract,  specific  performance  will  be  de- 

nied    122,123 

10.  Closing  contracts  by  offer  and  acceptance 123 

11.  Form  of  transfer.     Two  may  join  in  one  transfer 123 

SECTION  III. 

INTERVENING   CALLS   OR   ASSESSMENTS. 

1.  Vendor  must  pay  calls,  if  that  is  requisite  to  pass  title 123,124 

2.  Generally  it  is  matter  of  construction,  and  inference 124 

n.  2.  Calls  paid  by  vendor  after  executing  transfer 124,  125 

SECTION  IV. 

TRANSFER  BY  DEED  IN  BLANK. 

1  and  2.  Blank  transfer  formerly  held  invalid  in  England 125, 126 

3.  Rule  different  in  America 126 

4.  Deed  executed  in  blank  and  filled  by  procuration  valid 126 


ANALYSIS   OP  THE   CONTENTS.  XVU 

SECTION  V. 

SALB    OF   SrURIOUS   SnARES. 

1.  Vendor,  who  acts  bona  fide,  must  refund  money 127 

8.  No  implied  wa,rranty  in  such  case,  which  wifl  entitle  the  vendee  to 

special  damage 128 

4.  Rule  of  the  stock-exchange,  made  after  the  sale,  not  binding  upon 

parties 128 

n.  1.  Discussion  of  the  extent  of  implied  warranty 127 

SECTION  VI. 

BEADIXESS   TO  PERFORM.  —  CUSTOM  AXD   D8AGE. 

1.  Vendor  must  be  ready  and  offer  to  convey 128 

2.  Vendee  must  be  ready  to  pay  price 128,  129 

8.  General  custom  and  local  usage 129-131 

4.  The  party  taking  the  initiative  must  prepare  the  writings 131 

n.  3.  Oral  evidence  to  explain  memoranda  of  contract 129-131 

SECTION  vn. 

DAMAGES.  —  SPECIFIC   PERFq^MANCB. 

1.  Damages,  difference  between  contract  price  and  price  at  time  of  de- 

livery       132 

2.  Equity  will  decree  specific  performance  of  contract  for  sale  of  shares  132,  133 

SECTION  VIII. 

SPECIFIC   PERFORMANCE. 

1.  Specific  performance  decreed  against  the  vendee 134 

2.  This  was  denied  in  the  early  cases 134 

3.  Owner  of  original  shares  may  transfer  them 134,135 

4.  Will  not  decree  specific  performance  where  not  in  the  power  of  the 

party 136 

SECTION  IX. 

TRCSTEB   EirriTLBD  TO   INDEMKITT   AGAINST   FOTDRE   CALLS. 

1.  Trustee  entitled  to  indemnify,  on  general  principles 186 

2.  English  courts  hesitated  in  regard  to  railway  shares 136 

3  and  4.  Cases  reviewed 136, 137 

5.  Mortgagees  liable,  as  stockholders,  for  the  debts  of  the  company     .  137,  138 

6.  The  ostensible  owner  must  respond  to  all  responsibilities 139 

7.  Executors  responsible  personally 139, 140 

SECTION  X. 

FRACDCLENT  FHACTICES   TO   RAISE   THB   PRICE  OF  SHARES. 

1.  Courts  of  equity  will  vacate  sales  SO  procured 140,141 

2.  Necessary  parties 141-143 

3  and  4.  Diviclends   declared  when   none  are   earned   will  vacate   sales 

and  subject  directors  to  indictment 143 

6.  Equity  will  not  interfere  where  vendor  acted  h<ma  fide,  unless  the 

shares  were  valueless 143,  144 

h 


XVlll  ANALYSIS   OP  THE  CONTENTS. 

6.  Manafrers  of  company  liable  in  tort  to  party  injured 144 

7  and  n.  10.  Purchasing  shares  in  another  company  considered  .     .     .  144,  145 
8.  Bonajide  purchaser  of  shares  fraudulently  issued  acquires  same  rights 

as  other  shareholders 145 

SECTION  XL 

LIABILITY    OF   COMPANY    FOR   NOT   BEGISTERINQ   TKAX8FERS. 

1.  The  company  liable  to  action 145 

2.  May  be  compelled  to  record  transfers  by  mandamus 146 

8.  But  not  compellable  to  record  mortgages  of  shares 146 

4.  Grounds  of  denying  mandamus 146, 147 

6.  Bill  in  equity  most  appropriate  remedy 147 

6.  Rule  of  Damages 147 

SECTION  xn. 

WHEK    CALLS   BECOME   PERFECTED. 

1.  Calls  are  made  when  the  sum  is  assessed,  notice  may  be  given  afler- 

wards 148 

2  and  3.  Directors  the  proper  authority  to  make  calls 149 

4.  The  manner  of  giving  notice  and  of  proof 149 

SECTION  xm. 

TRANSFER   BT    DEATH,    INSOLVENCY,    OR   MARRIAGE. 

1.  Mandamus  lies  to  compel  the  registry  of  successor 150 

2  and  3.  In  case  of  death  personal  representative  liable  to  calls .     .     .  150, 151 

4.  Kotice  requisite  to  perfect  the  title  of  mortgagee 151 

5.  Stock  in  trust  goes  to  new  trustees 151 

6.  Assignees  of  insolvents  not  liable  for  the  debts  of  the  company  .     ,     .     151 

SECTION  xrv. 

LEGATEES   OF   SHARES. 

1.  Entitled  to  election,  interest,  and  new  shares 161,152 

2.  Shares  owned  at  date  of  will  pass,  although  converted  into  consoli- 

dated stock 152 

3.  Consolidated  stock  subsequently  acquired  will  not  pass 152 

SECTION  XV. 

SHARES    IK    TRUST. 

1  and  2.  Company  may  safely  deal  with  registered  owner 152,  153 

8.  But  equity  will  protect  the  rights  of  ces<«j«  }u« /ru«< 152,153 

4  and  n.  2.  Discussion  of  the  rights  of  cestuis  que  trust  in  stock  certifi- 
cates   158, 154 

.  SECTION  XVI. 

THE  KXTENT   OF   TRANSFER  REQUISITE   TO  EXEMPT   FROM    CLAIM   OF  CREDITORS. 

1.  How  transfer  of  stock  perfected  as  to  creditors 154, 155 

2.  Reasonable  time  allowed  to  record  transfer 155 

8  and  4.  In  some  of  the  states  no  record  required 155 

n.  3.  Question  further  considered 155 


ANALYSIS  OF  THE   CONTENTS.  XIX 

CHAPTER  IX. 

ASSESSMENTS   OK  CALLS. 

SECTION  I. 
PAHTT    LIABLE    FOR    CALLS. 

1.  The  party  upon  the  register  liable  for  calls 156 

2.  Bankrupts  remain  liable  fur  calls 156 

8.  Ceatnis  que  trust  not  liable  for  calls  in  law  or  equity 167 

4.  Trustee  fompelled  to  pay  for  shares 157,  158 

6.  One  on  registry  may  show  his  name  improperly  placed  there      .     .     .     168 

SECTION  n. 

COLORABLE    8CB8CRIFTIONS. 

1.  Colorable  subscriptions  valid 158, 169 

2.  Directors  may  be  compelled  to  register  them 159, 160 

8.  Oral  evidence  to  varj'  the  written  subscription  inadmissible    ....     160 

4.  Register  evidence  although  not  made  in  the  time  prescribed  .     .     .  160,  161 

6.  Confidential  subscriptions  void 161 

SECTION  IIL 

MODE   OP   ENFORCING   PAYMENT. 

1.  Subscription  to  indefinite  stock,  raises  no  implied  promise  to  pay  the 

amount  assessed 161-163 

2.  If  shares  are  definite,  subscription  implies  a  promise  to  pay  assess- 

ments.    Right  of  forfeiture  a  cumulative  remedy 163 

8.  Whether  issuing  new    stock  will    bar    a    suit    against    subscriber, 

quaere 164,  165 

4.  It  would  seem  not     . 165, 166 

6.  But  the  requirements  of  the  charter  and  general  laws  of  the  state,  must 

be  strictly  pursued  in  declaring  forfeiture  of  stock 166,  167 

6.  Notice  of  sale  must  name  place 167 

7.  Validity  of   calls  not  affected   by  misconduct  of  directors  in  other 

matters 167 

8.  Proceedings  must  be  regular  at  date 167 

9.  Acquiescence  will  estop  the  party,  often 167 

10.  Forfeiture  of  shares 167,  168 

11.  Irregular  calls  must  be  declared  void,  before  others  can  be  made  to 

8ui)ply  the  place 168 

SECTION  IV. 

CREDITORS  MAT   COMPEL   PAYMENT   OF  SUBSCRIPTIONS. 

1.  Company  compelled  to  collect  of  subscribers  by  mandamus  ....     168 

2,  8,  and  4.  Amount  due  from  subscribers,  a  trust  fund  for  the  benefit  of 

creditors 168,  169 

6.  If  a  state  own  the  stock  it  will  be  the  same 169 

6  and  7.  A  diversion  of  the  funds  from  creditors  is  a  violation  of  contract 

on  the  part  of  the  company,  and  a  state  law  authorizing  it  invalid  .  169 
8  and  9.    The  general  doctrine  above  stated  found  in  many  American 

cases 169,  170 

10.  Judgment  creditors  may  bring  bill  in  equity 170 


XX  ANALYSIS   OP  THE  CONTENTS. 

11.  Promoters  of  railways  liable  as  partners,  for  expenses  of  procuring 

charter 170, 171 

12.  Railway  company  may  assign  calls  before  due,  in  security  for  bona  fide 

debt.     No  notice  required  to  perfect  assignment  against  attachments 

or  judgment  liens 171 

SECTION  V. 

C0NDIT10K8    PRECEDENT   TO    MAKIXG    CALLS. 

1.  Conditions  precedent  must  be  pOTormed  before  calls 171,172 

2.  But  collateral  or  subsequent  conditions  not 172-176 

3.  Definite  capital  must  all  be  subscribed  before  calls 176 

4.  It  is  the  same  where  defined  by  the  company  as  in  the  charter    .     .     .     177 

5.  Conditional  subscriptions  not  to  be  reckoned 177 

6.  Legislature  cannot  repeal  conditions  precedent 178 

7.  Limit  of  assessments  cannot  be  exceeded  for  any  purpose      .     .     .     .     178 

8.  Where  charter  lails  to  limit  stock,  corporation  may 179 

9.  Altenition  in  charter  reducing  amount  of  stock 179 

SECTION  VI. 

CALLS   MAY   BE   MADE    PATABLE   BY    ISSTALMEST3.  179,  180 

SECTION  VII. 

PARTY    LIABLE    FOR    CALLS. 

1.  Subscribers  liable  to  calls 180 

2  and  6.     What  constitutes  subscription  to  a  capital  stock     ....  180-182 

3.  How  a  purchaser  of  stock  becomes  liable  to  the  company      ....     181 

4.  One  may  so  conduct  as  to  estop  him  from  denying  his  liability    .     .  181,  182 
6.  The  register  of  the  company  evidence  of  membership 182 

6.  Subscriptions  must  be  made  in  conformity  to  charter 182 

7.  Transferee  liable  for  calls.     Subscriber  also  in  some  cases     .     .     .  182,  183 

8.  Original  books  of  subscription  primary  evidence 183 

9.  If  lost  secondary  evidence  admissible 183 

10.  What  acts  will  constitute  one  a  shareholder 183 

11.  May  take  and  negotiate  or  enforce  notes  for  subscriptions      ....  183 

12.  But  note  fraudulently  obtained  not  enforceable 183 

13.  Subscriptions  as  executor  distinct  contracts  from  those  in  .private 

capacity 184 

SECTION  vin. 

RELEASE    FROM    LIABILITY    FOR   CALLS. 

1  and  2.  Where  the  transfer  of  shares,  without  registry,  will  relfeve  the 

proprietor  from  calls 184,  185 

3.  Where  shares  are  forfeited  by  express  condition,  subscriber  no  longer 

liable  for  calls 185 

4.  Dues  cannot  be  enforced  which  accrue  upon  shares  after  they  were 

agreed  to  be  cancelled 185 

SECTION  IX. 

DEFEXCES    TO    ACTIONS    FOR    CALLS. 

1.  Informality  in  organization  of  company  in.«ufficient 186,  187 

2.  Slight  acquiescence  estops  the  party  in  some  cases .     187 


ANALYSIS  OP  THE  CONTENTS.  XXI 

3  and  4.  Default  in  first  payment  insufficient 187, 188 

5.  Coujpany  and  subscriber  may  waive  that  condition 189 

6.  Contract  for  stock,  to  he  paid  in  otlicr  stocic 190 

7  and  8.  Infancy,     Statute  of  limitations  and  bankruptcy      ....  191,  192 
9.  One  commissioner  can  give  no  valid  assurance  to  the  route    .     .     .     .     192 

10.  What  representations  matters  of  opinion 192 

SECTION  X. 

FCNDAMBXTAL    ALTERATION    OF    CHARTER. 

1.  Will  release  the  subscribers  to  stock 193 

2.  Railway  company  cannot  purchase  steamboats 193,  194 

3.  7.  Majority  may  bind  company  to  alterations,  not  fundamental  194- 

196,198,199 

4.  Directors  cannot  use  the  funds  for  purposes  foreign  to  the  organiza- 

tion   196, 197 

5.  9.  Hut  where  the  le;rislaturc  or  the  directors  make  legal  alterations 

in  the  charter,  or  the  location  of  the  road,  it  will  not  release  sub- 
scribers .     . 197,198,200 

6.  But  if  subscriptions  arc  made  upon  condition  of  a  particular  location, 

it  must  be  complied  with 198 

8,  9.  Consideration  of  subscription,  being  location  of  road,  must  be  sub- 
stantially performed 199,  200 

10.  Express  conditions  must  be  performed 200 

'  ■         "  .201 

201,  202 
.  202 
.     202 


11.  How  far  alterations  may  be  made  without  releasing  subscribers 

12.  It  may  be  done  where  such  power  is  reserved  in  the  charter  . 

13.  Personal  representative  liable  to  same  extent  as  subscriber    . 

14.  Money  subscriptions  not  released  by  sul)sequent  ones  in  land 

15.  Corporation  cannot  emigrate  into  another  state  even  by  legislative 

permission 202 

SECTION  XI. 

8UBSCRIPTIOX8    BEFORE    DATE   OF   CHARTER. 

1.  Subscriptions  before  date  of  charter  good 202,  203 

2.  Subscriptions  upon  condition  not  performed 203-'J05 

n.  4.   Wiiere  the  condition  is  performed 203-205 

3.  Subscription  by  a  stranger  to  induce  company  to  build  station    .     .     .     205 

4.  Subscription  on  condition,  an  offer  merely 205 

5.  Conditional  subscription  takes  effect  upon  perfonnanco  of  the  con- 

dition"  . 205 

6.  How  far  commissioners  may  annex  conditions  to  subscription      .     .     .     205 

7.  Such  conditions  void,  if  fraudulent  as  to  company 205,  206 

SECTION    XII. 

81TB8CRIFTIOX   DPON   SPECIAL  TERMS. 

1.  Subscriptions  not  payable  in  money 206 

2.  Subscriptions  at  a  discount,  not  binding 206,  207 

n.  2.  Contracts  to  release  subscriptions  not  binding 207 

3.  Subscriptions  after  organization 208 

4.  President  may  accept  conditional  subscriptions 208 

6.  Recent  case  in  Alabama 208 

6.  True  rule  to  be  deduced  from  all  the  cases 208 

7.  Important  case  on  par  values 209 

8.  DitHcidty  of  maintaining  them 209 


XXU  ANALYSIS   OP  THE   CONTENTS. 

9.  Sad  effects  of  opposite  course  on  commercial  fair  dealing  ....  209,  210 

10.  Can  a  corporation  stipulate  to  pay  interest  on  stocks 210 

11.  Such  a  certificate  oi  stock  is  not  thereby  rendered  inoperative  for 

legitimate  purposes 210 

SECTION  xin. 

EQUITABLE    RELIEF    FROM    SUBSCRIPTIONS    OBTAI^*ED    BT    FRAUD. 

1.  Substantial  misrepresentations  in  obtaining  subscriptions  will  avoid 

them 211 

2.  But  for  circumstantial  misconduct  of  the  directors,  in  the  matter,  they 

alone  are  liable 212 

3.  Party  purchasing  must  make  reasonable  examination  of  papers  referred 

to  on  all  doubtful  points.    But  no  relief  will  be  granted,  where  there 

is  no  fraud,  or  intentional  misrepresentation 212 

4.  Directors  cannot  make  profit  for  themselves 212,  213 

SECTION  XIV. 

FORFEITURE   OF    SHARES.  —  RELIEF    IN    EQUITY. 

1.  Requirements  of  charter  and  statutes  must  be  strictly  pursued    .     .     .     213 

2.  If  not,  equity  will  set  aside  the  forfeiture 213 

3.  Must  credit  the  stock  at  lull  market  value 213,  214 

4.  Provisions  of  English  statutes 214 

5.  Evidence  must  be  express,  that  all  requisite  steps  were  pursued      .     .     214 

SECTION  XV. 

BIGHT    OF    CORPORATORS   AND   OTHERS    TO    INSPECT    BOOKS   OF   COMPAST. 

1.  May  inspect  and  take  minutes  from  books 214 

2.  Discussion  of  the  extent  to  which  such  books  are  evidence     .     .     .  214,  215 

3.  For  what  purposes  such  books  are  important  as  evidence 215 

4.  This  will  not  embrace  the  books  of  proceedings  of  directors  ....  215 

5.  Party  claiming  to  be  shareholder  may  inspect  register 216 

6.  Allowed  when  suit  or  proceedings  pending 216 

7.  Party  may  have  aid  in  the  inspection 216 


CHAPTER  X. 

RIGHT  OF  WAY  BY  GRANT. 

SECTION    I. 

OBTAIKINO    LANDS    BT    EXPRESS   CONSENT. 

1.  Leave  granted  bv  Enj^lish  statute 217 

2.  Persons  under  disability 217 

3.  and  n.  2.  Money  to  take  the  place  of  the  land 217,  218 

4.  Consent  to  pass  railway 218 

6.  Duty  of  railway  in  all  cases 218 

6.  License  to  build  railway.     Extent  of  duration 218 

7.  Company  bound  bv  conditions  in  deed 219 

8.  Parol  lii'ense  good"  till  revoked 219,220 

9.  Sale  of  road  no  abandonment 220 

10.  Deed  conveys  incident ;  not  explainable 220,  221 

11.  One  cannot  derogate  from  compulsory  grant 221 


ANALYSIS  OP  THE  CONTENTS.  XXllI 

12.  But  this  does  not  apply  to  accidental  incidents 221 

18.  Case  in  N.  Y.  Court  of  Appeab  somewhat  at  variance  with  the  pro- 
ceding  cases 221 

14.  A  nuinic-ipal  corporation  may  be  bound  by  implied  contract  in  the 

grant  of  land,  so  as  not  to  be  at  liberty  to  recede  from  it  .     .     .  221,  222 

15.  A  mere  agreement  to  sell,  although  in  writing,  will  not  justify  the 

conjpany  in  entering  upon  the  land,  or  defeat  proceedings  under 

the  statute  to  recover  damages  for  taking  the  land 222 

SECTION  II. 

SPECIFIC    PERFORMANCE    IN    EQUITY. 

1.  Contracts  before  and  after  date  of  charter 223 

2.  Contracts  where  all  the  terms  not  defined 223 

3.  Contracts  for  land  umpire  to  fix  price 223,  224 

4.  Where  mandamus  also  lies 224 

6.  Contracts  not  signed  by  company 224 

6.  Where  tenns  are  uncertain 224 

7.  Contracts  giving  the  company  an  option 224,  226 

8.  Contracts  not  understood  by  both  parties 225 

9.  Order  in  regard  to  construction  of  highways  may  bo  enforced  at  the 

suit  of  the  municipality 225,  226 

10.  The  courts  sometimes  decline  to  decree  specific  performance  on  the 

ground  of  public  convenience 227 

11.  No  decree  of  specific  perlbrmance  when  contract  vague  and  uncertain, 

and  for  other  reasons 227 

12.  Courts  of  equity  will  not  in  the  final  decree  make  the  price  a  charge  on 

the  land,  unless  so  declared  at  first 227 


CHAPTER  XI. 

EMINENT  DOMAIN. 

SECTION    I. 
GENERAL  PRINCIPLES. 

1.  Definition  of  the  right 228 

2.  Intercommunication 228 

3.  Necessary  attribute  of  sovereignty 229,  2.S0 

4.  Anti(|uitj'  of  its  recognition 230 

5.  Limitations  upon  its  exercise 280 

6.  Resides  principally  in  the  states 230 

7.  Duty  of  making  compensation 230,  231 

8.  Navigable  waters , 231 

9.  10,  and  11.  Its  exercise  in  rivers,  above  tide- water 231 

SECTION  II. 

TAKINO    LANDS    IN    INVITDM. 

1.  Legislative  grant  requisite 282 

2.  Compensation  must  be  made 238 

8.  ConscHjuential  damages 233 

4.  Extent  of  each  liability 233 

5.  These  grants  strictly  constnied 2.'J3,  234 

6.  Limitation  of  the  power  to  take  landfl 234,235 


XXIV  ANALYSIS   OF  THE   CONTENTS. 

7.  Interferenceof  courts  of  equity 235 

8.  Rule  of  construction  in  American  courts 235,236 

9.  Strict,  but  reasonable  construction 236 

10.  Rights  acquired  by  company 236 

11.  Limited  by  the  grant 236 

12.  Late  decision  of  the  House  of  Lords 236,  237 

SECTION  in. 

CONDITIONS   PRECEDENT. 

1.  Conditions  precedent  must  be  complied  with 237,  238 

2.  That  must  be  alleged  in  petition 238 

8.  When  title  vest«  in  company 238,  239 

4.  Filing  the  location  in  the  land  office  is  notice  to  subsequent  purchasers    239 

5.  After  damages  are  assessed  and  confirmed  by  the  court  the  owner  is 

entitled  to  execution 239 

6.  If  the  company  use  the  land 239,240 

7.  Subscriptions  payable  in  land  without  compensation,  a  court  of  equity 

will  enforce  pajTuent 240 

SECTION  IV. 

PRELIMINARY   SURVEYS. 

1 .  May  be  made  without  compensation 240 

2.  Company  not  trespasser 240,  241 

3.  For  what  purposes  company  may  enter  upon  lands 241 

4.  Company  liable  for  materials 241,  242 

5.  Right  to  take  materials 242 

6  and  7.  Location  of  survey 242 

SECTION  V. 

POWER  TO   TAKE   TEMPORARY   POSSESSION   OF   PUBLIC   AND   PRIVATE   WATS. 

1.  The  railway  company  may  take  possession  of  public  or  private  ways, 

in  building  their  works.     Responsibility 243 

2.  Remedy  under  the  statutes,  unless  special  damage 243 

3.  Party  excavating  highway  in  building  sewer  and  having  restored  it,  no 

further  responsible 243 

SECTION  VI. 

LAND   FOR   ORDINARY   AND   EXTRAORDINARY   USES. 

1.  By  English  statute  may  take  land  for  all  necessary  uses     ....  244,  245 

2.  Companies  have  tlie  same  power  here 245 

3.  So  also  of  companies  connecting  at  state  lines 245,  246 

SECTION  VII. 

TITLE   ACQUIRED   BY   COMPANY. 

1.  Company  have  only  right  of  way 246,247 

2.  Can  take  nothing  from  soil  except  for  construction 247 

8.  Deed  in  fee-simple  to  company 248 

4.  For  what  uses  may  take  land 248,  249 

6.  Right  to  cross  railway,  extent  of 249 


ANALYSIS   OP  THE   CONTENTS.  XXV 

6.  Conflicting  rights  in  diflVrent  companies 249,  250 

7,8.  Rule  in  the  American  states 260,251 

9.  Right  to  use  streets  of  a  city 261 

10.  Law  not  the  same  in  all  the  states 261,  252 

11.  Rule  in  Massachusetts 252 

12.  13.  Land  reverts  to  the  o^vner 252,  263 

14.  True  rule  stated 263 

15.  Conditions  must  be  performed 253 

16.  Further  assurance  of  title 263 

17.  Condemnation  cannot  be  impeached 263,  264 

18.  Where  public  acquire  fee,  it  will  never  revert  to  grantor 25-4 

SECTION  VIIL 

COBPORATE   FRANCHISES   CONDEMNBO. 

1.  Road  franchise  may  be  taken 255 

2.  Compensation  must  be  made 255,  256 

3.  Railway  franchise  mav  be  taken 256 

4.  Rule  di'fined     .     •     .\ 256 

5.  Constitutional  restrictions 256 

6.  Not  well  defined 256,  257 

7.  Must  be  exclusive,  in  terms 257 

8.  Legislative  discretion 257 

9.  Highways  and  railways  compared 257 

10.  Extent  of  eminent  domain 257,  258 

11.  Exclusiveness  of  the  grant,  a  subordinate  franchise 258 

12.  Legislature  cannot  create  a  franchise,  above  the  reach  of  eminent 

domain 258 

13.  Legislature  may  apply  streets  in  city  to  any  public  use 259-261 

SECTION  IX. 

COHPEXSATION.  —  MODE    OF   ESTIMATIXO. 

1.  General  inquiry  simple 261 

2.  Remote  damage  and  benefits  not  to  be  considered 261 

3.  General  rule  of  estimating  compensation 261,262 

4.  Prospective  damages  assessed 262 

6.  In  some  states  value  **  in  money"  is  required 263 

6  and  7.  Damage  and  benefits  cannot  be  considered  in  such  cases    .     .  263,  264 

8.  Ruleof  the  English  statute 265 

9.  Farm  accommodations 265,  266 

10.  Benefits  and  damage,  if  required,  must  be  stated 266,  267 

n.  13.  Course  of  the  trial  in  estimating  land  damages 266,  267 

11.  Items  of  damages  not  indispensal)le  to  be  stated 267 

12.  In  contracts  for  land  statutory  privileges  must  be  stated  to  be  secured      268 

13.  Questions  of  doubt  referred  to  experts 268 

14.  Special  provisions  as  to  crossing  streets  only  permissive '268 

15.  In  an  award  of  farm  accommodations,  time  of  the  essence  of  the  award     268 

SECTION  X. 

MODE   OP   PROCEDURE. 

1.  legislature  may  prescribe 269 

2.  Must  be  upon  proper  notice 269 

3.  Formal  exceptions  waived,  by  appearance 270 

4.  Unless  exception  is  upon  record 270 

5.  Proper  parties,  those  in  interest 270 


XXVI  ANALYSIS  OP  THE  CONTENTS. 

6.  Title  may  be  examined 270,  271 

7.  Plaintiffs  must  show  joint  interest 271 

8.  Jury  may  find  facts  and  refer  title  to  the  court 271 

9.  Land  must  be  described  in  verdict 271 

10.  Distinct  finding  on  each  claim 272 

11.  Ddlerent  interests 272 

12.  What  evidence  competent 272 

18.  Proof  of  value  of  land 272,273 

1-i.  Opinion  of  witnesses 274 

15.  Testimony  of  experts 274,  275 

16.  Matters  incapable  of  description 275 

17.  Costs 276,  277 

18.  Expenses 277 

19.  Commissioners'  fees 277 

20.  Appellant  failing  must  pay  costs 277 

21.  Competency  of  jurors 277 

22.  Power  of  court  to  revise  proceedings 278 

23.  Debt  will  not  lie  on  conditional  report 278 

24.  Excessive  damages,  ground  of  setting  aside  verdict 278 

Note.     Other  matters  of  practice 278,279 

25.  No  effort  to  agree  required  in  order  to  give  jurisdiction 279 

SECTION  XL 

THE    TIME   COMPEX8ATION   TO   BE   MADE. 

1.  Opinions  conflicting 280 

2.  Chancellor  Kent's  definition 280 

3.  That  of  the  Code  Napoleon .280,281 

4.  Most  state  constitutions  require  it  to  be  concurrent  with  the  taking      .     281 

5.  English  cases  do  not  require  this 282,  283 

6.  Adequate  legal  remedy  sufficient 283,  284 

7.  Where  required,  payment  is  requisite  to  vest  the  title 284,  285 

8.  Some  states  hold  that  no  compensation  is  requisite 285 

SECTION  XII. 

APPRAISAL   INCLUDES   CONSEQUENTIAL   DAMAGES. 

1.  Consequential  damage  barred 286 

2.  Such  as  damage,  by  blasting  rock 286 

8.  But  not  where  other  land  is  used  unnecessarily 287,  288 

4,  But  loss  by  fires,  obstruction  of  access,  and  cutting  off  springs,  is  barred    288 
6.  Loss  by  flowing  land  not  barred 289 

6.  Damages,  from  hot  building  upon  the  plan  contemplated,  are  barred .  289,  290 

7.  Special  statutory  remedies  reach  such  damages 290 

8.  Exposure  of  land  to  fires .290,291 

9.  No  action  lies  for  damages  sustained  by  the  use  of  a  railway  ....    292 

SECTION  xni. 

ACTION    FOR   CONSEQUENTIAL  DAMAGES. 

1.  Statute  remedy  for  lands  "  injuriously  affected  " 293 

2.  Without  statute  not  liable  to  action 293 

8.  Are  liable  for  negligence  in  construction,  or  use 294,  295 

4.  Statute  remedy  exclusive 295 

6.  Minerals  reserved 295,  296 

6.  Damages  for  taking  land  of  railway  for  highway 296 

7.  Compensation  for  minerals,  when  recoverable 296 


ANALYSIS   OP  THE  CONTENTS.  XXVll 

SECTION  XIV. 

EIGHT   TO  OCCUPT   HIGim''AT. 

1.  Decisions  conflicting 297 

2.  First  ladd  that  owners  of  the  fee  were  entitled  to  additional  damages  .     297 

3.  Principle  seems  to  require  this 298-300 

4.  Many  rases  take  a  dinerent  view 301-801 

5.  Legislatures  may  and  should  require  such  additional  compensation    .     .     305 

6.  Courts  of  equity  will  not  enjoin  railways  from  occupying  streets  of  a  city     305 

7.  Some  of  tlie  states  require  such  compensation 306-308 

n.  11.     All  do  not.     But  the  English  courts,  principle,  and  many  of  the 

state  courts,  do  require  it,  as  matter  of  right 308,  309 

8.  Recent  decision  upon  the  right  to  occupy  the  highway 309-313 

1.  The  decisions  in  the  state  of  New  York  require  compensation  to  the 

owner  of  the  fee • 309,  310 

2.  Distinction  between  streets  of  cities  and  highways  in  the  country   .     .     310 

8.  Legislature  may  control  existing  railways 810 

4.  In  Ohio  the  owner  of  the  fee  may  claim  indemnity  against  additional 

injury 310,311 

6.  True  distinction,  whether  the  use  is  the  same 311 

6.  The  present  inclination  seems  to  be  to  require  additional  conipensa- 

tion  for  laying  street  railway  in  highway 311 

7.  Cases  in  the  opposite  direction.     Judge  Ells worth^s  opinion    .     .311,312 

8.  Explanation  of  the  apparent  confusion 812 

9.  Where  permanent  erections  made  in  street,  compensation  must  be 

made 312 

10.  Rights  of  land-owners  as  to  obstructing  railway 812,313 

11  &  n.  25.  Recent  cases  in  New  York,  property  rights  of  the  com- 
pany      313-315 

1.  The  interest  demands  reasonable  protection 315,  316 

2.  The  legislature  have  power  to  impose  a  permanent  burden  upon 

streets 316 

8.  But  this  is  not  to  be  assumed  as  matter  of  construction 816 

4.  Decisions  not  uniform.     Generally  held  that  street  railway  franchise 

exists  in  the  easement  for  the  highway.     Analogy  of  steam  roads     .  316 

6.  Street  railways  do  not  increase  the  servitude  of  the  highway  .     .     .     .  317 

6.  Must  always  be  regarded,  and  treated,  as  a  portion  of  the  highway      .  817 

7.  The  estate  or  franchise  of  street  railways,  exclusive,  as  to  passenger 

tralfic 317 

8.  9.  This  point  further  illustrated 317,  318 

10.  I  low  far  the  legislature  may  effect  the  exclusiveness  of  this  franchise   .     318 

11.  Where  compensation  is  required,  no  abridgment  of  right  implied    .     .     318 

12.  The  franchise  and  property  must  remain  subject  to  legislative  and 

municipal  control 818,819 

13.  Some  states  allow  additional  land-damages  for  change  of  grade  of  the 

street 319 

14.  This  not  demandable,  unless  the  change  is  required  for  something 

in  addition  to  highway,  or  unless  given  by  special  statute  .     .     .  319,  820 
15-19.  Summary  of  the  argument  under  this  head 820 

SECTION  XV. 

COWFUCTISO   HIOHTS   IN   DIFFERENT   COMPANIES. 

1.  Railway  company  subservient  to  another,  can  only  take  of  the  other 

land  enough  for  its  track 821 

2.  Where  no  apparent  conflict  in  route,  first  located  acquires  superior 

right 321 


XXVlll  ANALYSIS  OP  THE  CONTENTS. 

SECTION  XVI. 

RIGHT   TO   BUILD   OVER  NAVIGABLE   WATERS. 

1.  Legislature  mav  grant  the  right 322 

2.  Riparian  proprietor  owns  only  to  the  water 323 

3.  His  rights  in  the  water  subservient  to  public  use 323 

4.  Legislative  grant  paramount,  except  the  national  rights 323 

6.  State  interest  in  fiats  where  tide  ebbs  and  Hows 324-327 

6.  Rights  of  adjoining  owners  in  Massachusetts 327,  328 

7.  Railway  grant  to  place  of  shipping 328 

8.  Principal  grant  carries  its  incidents 328 

9.  Grant  of  a  harbor  includes  necessary  erections 328 

10,11.  Large  rivers  held  navigable  in  this  country 328,329 

12.  Land  being  cut  off  from  wharves  is  "  injuriously  affected"     ....     329 

13.  Paramount  rights  of  Congress  infringed  creates  a  nuisance.     Party 

specially  injured  may  have  action 329 

14.  Case  in  New  Hampshire 330 

15.  Obstruction,  if  illegal,  ^er  sc  a  nuisance 330 

SECTION  XVII. 

OB8TRUCTIOX   OF   STREAMS    BY    COMPANY'S   WORKS. 

1.  Cannot  divert  stream,  without  compensation 330,  331 

2.  Company  liable  for  defective  construction 331 

3.  So  also  if  they  use  defective  works,  built  by  others 331 

4.  Company  liable  to  action,  where  mandamus  will  not  lie      ....  331,  332 

5.  Company  liable  for  defective  works,  done  according  to  their  plans  .     .     332 

6.  When  a  railway  "  cuts  off "  wharves  from  the  navigation 332 

7.  Stream  must  be  restored  and  maintained 332 

8.  Company  cannot  cast  surface  water  on  adjoining  land,  except  from 

strict  necessity 332,  333 

SECTION  XVIII. 

OBSTRUCTION   OF  PRIVATE   WAYS. 

1.  Obstruction  of  private  way  matter  of  fact,  need  not  be  illegal     .     .     .     333 

2.  Farm  road  on  one's  own  land,  not  private  way 333 

3.  But  railway  may  lawfully  pass  along  public  street 333,  334 

SECTION  XIX. 

STATUTE   REMEDY   EXCLUSIVE. 

1.  Remedy  for  land  taken,  exclusively  under  the  statute 334 

2.  But  if  company  do  not  pursue  statute  are  liable  as  trespassers.     Liable 

for  negligence  also 335 

3.  Courts  of  equity  often  interfere  by  injunction 336 

4.  Important  case  in  the  House  of  Lords 336 

6.  Right  at  law  must  be  first  established 337 

6.  Where  statute  remedy  fails,  common-law  remedy  exists 337 

7.  The  general  rule  adhered  to  in  America 337 

8.  Company  adopting  works  responsible  for  amount  awarded  for  land 

damages ^ 337 


ANALYSIS  OP  THE   CONTENTS.  XXIX 

SECTION  XX. 

LAXDS   1NJCRIOC8LT   AFFECTED. 

1.  Obstruction  of  way,  loss  of  custom 338,839 

2.  Equity  will  not  enjoin  legal  right 339,  340 

3.  Liable  for  building  railway,  so  as  to  cut  off  wharf    .......     340 

4.  Not  liable  for  crossing  highway  on  level 340 

5.  English  statute  only  includes  damages  by  construction      ....  340,  341 

6.  Equity  will  not  enjoin  a  doubtful  claim 341 

7.  Damages  unforeseen,  at  the  time  of  the  appraisal,  may  be  recovered, 

in  England 341,  342 

8.  Injuries  to  ferrj',  and  towing-path,  compensated 342 

9.  10.  Remote  injuries  not  within  the  statute 342,  343 

11.  Damages  compensated,  under  statute  of  Massachusetts 343 

12.  Damages  not  compensated,  as  being  too  remote 343 

13.  For  negligence  in  construction,  remedy  at  common  law 344 

14.  Or  neglect  to  repair 344 

15.  Recovery  under  the  statute,  &c 344 

16.  Possession  by  railway,  notice  of  extent  of  title 344,345 

17.  Railways  have  right  to  exclusive  possession  of  roadway 345 

SECTION  XXI. 

DIFVEBENT  ESTATES  PROTECTED. 

1.  Tenant's  good-will  and  chance  of  renewal  protected 345,  346 

2.  Tenants  entitled  to  compensation  for  change  of  location 346 

3.  Church  property  in  England,  how  estimated 346 

4.  Tenant  not  entitled  to  sue,  as  owner  of  private  way 346 

6.  Heir  should  sue  for  compensation 347 

6.  Lessor  and  lessee  both  entitled  to  compensation 347 

7.  Right  of  way,  from  necessity,  protected 347 

8.  Mill-owner  entitled  to  action  for  obstructing  water 347 

9.  Occupier  of  land  entitled  to  compensation 347,  348 

10.  Tenant,  without  power  of  alienation,  forfeits  his  estate,  by  license  to 

company 348 

11.  Damages  not  transferable  by  deed  of  land,  after  they  accrue      .     .     .     348 

SECTION  XXIL 

ARBITRATION. 

1.  Attorney,  without  express  power,  may  refer  disputed  claim  ....     349 

2.  Award  binding,  unless  objected  to  in  court 349 

SECTION  XXIII. 

8TATCTB    OF    LIMITATIONS. 

1.  General  limitation  of  actions  applies  to  land  claim 349,  350 

2.  Filinjj  petition  will  not  save  bar 350 

3.  Acquiescence  of  forty  years  by  land-owner,  effect  of 350 

4.  The  estoppel  will  take  effect  if  the  use  is  clearly  adverse  ....  350,  351 


XXX  ANALYSIS   OF  THE  CONTENTS. 

CHAPTER  Xn. 

REMEDIKS  BY  LAXD-OWNERS   UNDER  THE  EXGLISH    STATUTE. 

SECTION  I. 
COMPANY    BOUND   TO   PURCHASE    THE   WHOLE    OF   A   HOUSE,   ETC. 

1.  The  company  to  take  the  accessories  with  the  house     .• 352 

2.  But  the  owner  has  an  election  in  regard  to  that 352,  353 

8.  A  deposit  of  the  appraised  value  means  the  value  of  all  the  company 

are  bound  to  take 358 

4.  Company  bound    to    take    all   of  which  they  take  part,   and  pay 

specisJ  damage  besides 353,  354 

5.  Where  the  company  desire  part,  not  compellable  to  take  whole  unless 

they  persist  in  taking  part 354 

6.  Land  separated  from  house  by  highway  not  part  of  premises     .  354,  355 

*  SECTION  n. 

THE    COMPANY    COMPELLABLE   TO   TAKE    INTERSECTED   LANDS,   AND   THE   OWNER 

TO  SELL. 

1.  When  less  than  half  an  acre  remains  on  either  side,  company  must 

buy 355 

2,  Owner  must  sell  where  land  of  less  value  than  railroad  crossing      .  355,  356 
3  and  4.  Word  "  town,"  how  construed 356 

SECTION  in. 

EFFECT  OF  NOTICE  TO  TREAT  FOR  THE  PURCHASE  OF  LAND. 

1.  Important  question  under  statute  of  limitations 356 

2.  Company  compelled  to  summon  jury 356 

3.  Ejectment  not  maintainable  against  company 357 

4.  Powers  to  purchase  or  enter,  how  saved 357,  358 

6.  Subsequent  purchasers  aflfected  by  notice  to  treat  as  the  inception  of 

title    .     .     : 358 

6.  But  the  notice  may  be  withdrawn  before  any  thing  is  done  under  it      .     358 

7.  Not  indispensable  to  declare  the  use,  or  that  it  is  for  station,  and  an- 

other company  to  participate  in  use 358 

SECTION  IV. 

REQUISITES    OF    THE    NOTICE   TO   TREAT. 

1.  Notice  to  treat  must,  in  terms  or  by  reference,  accurately  describe 

land 859 

2.  After  notice  to  treat  company  compellable  to  purchase.     Company 

cannot  retract  after  giving  notice  to  treat 859 

3.  New  notices  given  for  additional  lands 360 

4.  Power  to  take  land  not  lost  by  former  unwarranted  attempt  ....  360 

5.  Lands  may  be  taken  for  branch  railway 360 

6.  Effect  of  notice  in  case  of  a  public  park 860 


ANALYSIS  OP  THE  CONTENTS.  XXXI 

SECTION  V. 

THE  KOTICB   MAT  BE  WAITED,   BT   THE   PABTT   ENTERIHO   nTTO  THE  NEGOTIATION. 

1,  Notice  must  be  set  forth  in  proceedings 360,  861 

2.  Agreement  to  waive  operates  as  an  estoppel 861 

8.  Certiorari  denied  where  party  has  suffered  no  injury 361 

SECTION  VI. 

TITLE    OF   THE    CLAIMANT    MD8T   BE   DISTINCTLY   STATED. 

1.  Claimant's  reply  to  notice  should  be  clear  and  accurate 861 

2.  Award  bad,  which  docs  not  state  claimant's  interest 3C1,  362 

8.  Where  lands  are  held  bv  a  receiver  or  commission  for  a  lunfitic.     Ex- 
pression "  fee-simple  in  possession" 862 

n.  8.  Analogous  American  cases 362,  363 

SECTION    VII. 

THE    CLAIM    OF    THE    LAND-OWNER   MUST   CORRESPOND   WITH    THE    NOTICE.     868 

CHAPTER  xm. 

ENTRY   UPON  ULNDS  BEFORE  COMPENSATION  IS  ASSESSED. 

SECTION  I.   • 

LANDS    TAKEN    OR    INJtTRIOnSLY    AFFECTED,   WITHOUT    HAVING    PREVIOUSLY  MADB 
COMPENSATION   TO   THE   PARTIES. 

1.  No  entrj-  under  English  statutes  without  previous  compensation,  ex- 

cept for  preliminary  survey 364 

2.  Legal  remedies  against  company  offending 364 

3.  What  acts  constitute  taking  possession  under  statute 365 

4.  Company  may  enter  with  iand-owner''s  consent  after  agreement  for 

arbitration 365 

5.  Bond  may  be  given  in  certain  cases 365,  366 

6.  Company  restrained  from  using  land  until  price  paid,  even  after  line  in 

operation.    But  this  rule  dissented  from 366,  367 

SECTION  II. 

THE  PROCEEDINGS  REQUISITE  TO  ENAHLE  THE  COMPANY  TO  ENTER  UPON  LAND. 

1.  Provisional  valuation  under  English  Statutes 367 

2.  Irregularities  in  proceedings 367,  368 

3.  Penalty  for  irregular  entry  upon  lands 368 

4.  Entrj-  after  verdict  estimating  damages,  but  before  judgment     .     .     ,     368 
6.  Mode  of  assessing  damages  provided  in  charter  not  superseded  by  sub- 
sequent general  railway  act 368 

SECTION  m. 

MODE   OF   OBTAINING    COMPENSATION    X^XDER   THE   STATUTE,   FOR    LANDS   TAKEN,   OR 
INJURIOUSLY    AFFECTED,    WHERE    NO   COMPENSATION    IS   OFFERED. 

1 .  Claimant  may  elect  arbitration  or  jury  trial 368,  369 

Q.  Method  of  procedure 369 


XXXH  ANALYSIS   OP  THE   CONTENTS. 

SECTION  IV. 

THE  ONUS  OF  CABBYING  FOBWABD  PBOCEEDINOS. 

1 .  Rests  upon  claimant  after  company  have  taken  possession 369 

2.  Miscellaneous  provisions 369,  370 

3.  Proceedings  cannot  be  had  unless  actual  possession  is  taken,  or  injury 

done 370 

SECTION  V. 

EQUITY   WILL  NOT   INTEBFEBE,   BY   INJUNCTION,   BECAUSE    LANDS   ABE   BEING    INJU- 
BIOUSLY  AFFECTED,  WITHOUT  NOTICE  TO  TREAT,  OB  PBEVIOU8  COMPENSATION. 

1.  Claimant  must  wait  until  works  are  completed 370,  371 

2.  Even  if  appearance  of  land  will  be  greatly  altered 371 

3.  How  far  equity  interferes  where  legal  claim  of  party  is  denied    .     .     .     371 

4.  Where  a  special  mode  of  compensation  has  been  agreed  upon     .     .     .     371 

SECTION  VI. 

sheriff's  jury,   or   ARBITRATOR,   CANNOT   DETERMINE   THE   QUESTION  OF  EIGHT  IN 
THE    CLAIMANT,    BUT    ONLY    THE    AMOUNT    OF    D^VMAGES. 

1.  Later  English  decisions  sustain  this  view 372 

2  and  3.  Statement  of  recent  case 372,  373 

4.  In  most  American  states  assessment  is  final 373 

6.  Plaintiff  will  recover  damages  assessed  if  he  suffered  any  legal  injury  .     373 

SECTION  VII. 

THE   EXTENT   OF    COMPENSATION   TO   LAND-OWNERS,   AND   OTHER   INCIDENTS   BY  THE 

ENGLISH   STATUTES. 

1.  Liberal  compensation  allowed 374 

2.  Decisions  under  English  statutes 374,  375 

3.  Limit  of  period  for  estimating  damages 375 

4.  Whether  claim  for  damages  passes  to  the  devisee  or  executor     .     ,     .     375 

5.  Vendor  generally  entitled  to  damages  accruing  during  his  time  .     .     .     375 

SECTION  VIII. 

BIGHT  TO  TEMPORAEY  USE  OF  LAND  TO  ENABLE  COMPANY  TO  MAKE  EBECTIONS 

UPON  OTHER  LANDS. 

1.  Right  to  pass  another  railway  by  a  bridge  gives  a  temporary  use  of 

their  land,  but  no  right  to  build  abutments  upon  it 376 

2.  Right  to  construct  a  bridge  across  a  canal  gives  right  of  building  a  tem- 

porary bridge 376 

3.  And  if  thus  erected  honajide  may  be  used  for  other  purposes     .     .     .     376 

SECTION  IX. 

KEBEBVATIONS   TO    LAND-OWNERS   TO   BUILD   PRIVATE  RAILWAY  ACROSS  PUBLIC 

BAILWAY.  377 

SECTION  X. 

DISPOSITION  OF  8UFBBFLCOU8   LANDS. 

1.  Vest  in  adjoining  owner  unless  disposed  of  in  ten  years     .     .     .     .377,378 

2.  Former  owner  not  excluded.     Effect  of  cottage  in  field 378 


ANALYSIS  OF  THE?  CONTENTS.  XXxiii 

CHAPTER  XrV. 

TH£  XODE  OF  A8SS8SINO  COBCPENSATION   UNDER  THE  ENGLISH  STATUTES. 

SECTION  I. 

BT  JUSTICES   OF  THE   PEACE. 

1.  Where  compensation  claimed  does  not  exceed  £50 879 

2.  Mode  of  enforcing  award 379 

8.  Value  of  land  and  injury  accruing  from  severance  to  be  considered .     .     879 

SECTION  n. 

BT   SUBVETOS8.  379,  380 

SECTION  in. 

BT   ARBITRATION. 

1.  May  be  claimed  in  cases  exceeding  jurisdiction  of  justices  of  the  peace    880 

2.  How  made  compulsory 380,  881 

8.  What  form  of  notice  is  sufficient 881 

n.  5.  Analogous  American  cases 381 

4.  Arbitrator's  power  limited  to  award  of  pecuniary  compensation  .     .     .     381 
6.  Where  land-owner  gives  no  notice,  company  may  treat  it  as  case  of 

disputed  compensation 881,  382 

6.  Similar  rule  under  Massachusetts  statute  regarding  alteration  of  high- 

ways  882 

7.  And  land-owners  may  recover  without  waiting  for  selectmen  to  act ,     .     882 

8.  Company  estopped  in  such  case  from  denying  that  road  was  constructed 

by  their  servants.     Embankments  part  of  the  railway 382 

9.  Finality  of  award 382 

10.  May  employ  experts.     Damages  embraced 382,  383 

11.  Construction  of  general  award 883 

CHAPTER  XV. 

CONSTRUCTION  OF  RAILWAYS. 

SECTION    I. 
LINE   OF  RAILWAY.  —  RIGHT   OP   DEVIATION. 

1.  Manner  of  defining  the  route  in  English  charters 884 

2.  Question  involved  stated 885-387 

8.  Plans  only  binding,  when  and  for  the  purpose  referred  to,  in  the 

act 887, 888 

4.  Contractor  bound  by  deviation,  unless  he  object 388 

6.  Courts  of  equity  will  not  enforce  contract  against  public  security    .     .     388 

6.  Right  to  construct  accessory  works 888,  389 

7,  8.  Company  may  take  lands  designated,  in  their  discretion     .     .     .  889,  390 

9.  Equity  cannot  enforce  contract,  not  incorporated  into  the  act     .     .     .     390 

10.  Right  of  deviation  lost  by  election 890,  891 

11.  Railway  between  two  towns,  extent  of  grant 891 

12.  Grant  of  land  for  railway  includes  accessories 891 

c 


XXXIV  ANALYSIS   OP  THE   CONTENTS. 

18.  Route  designated  need  not  be  followed  literally 391,  892 

14.  Terminus  being  a  town,  is  not  extended,  as  the  town  extends     .     .     .     392 

15.  Party  accepting  compensation  waives  informality 392 

16.  Powers  limited  in  time  expire  with  limitation 392,  393 

17.  Construction  of  charter  as  to  extent  of  route 393 

18.  Map  may  be  made  to  yield  to  other  grounds  of  construction       .  .     393 

19.  Power  to  change  location  must  be  exercised  before  construction     .     .     393 

20.  Binding  force  of  plans  made  part  of  charter        393,  394 

21.  Grant  terminating  at  town  liberally  construed 394 

SECTION  n. 

DISTANCE   HOW   MEASURED. 

1.  This  is  affected  by  subject-matter 894 

2.  Contracts  to  build  railway,  by  rate  per  mile 394 

3.  General  rule  to  measure  by  straight  line 395 

4.  Same  rule  in  regard  to  turnpike  roads 395 

6.  Rate  fixed  by  mile  means  full  mile  ;  no  charge  for  fractions  ....  395 

SECTION  m. 

MODE    OF    CONSTRUCTION,   TO  BE   DONE  WITH   LEAST   DAMAGE. 

1.  Does  not  extend  to  form  of  the  road,  but  the  mode  of  construction     .     396 

2.  Special  provisions  of  act  not  controlled  by  this  general  one  ....     396 

3.  Works  interfered  with,  to  be  restored,  for  all  uses 396 

SECTION  IV. 

MODE    OF    CROSSING   HIGHWAT8. 

1.  English  statutes  require  it  should  not  be  at  grade 397 

2.  Or  if  so,  that  gates  should  be  erected  and  tended 397 

3.  And  if  near  a   station,  railway  train   not  to   exceed  four  miles  an 

hour 397,  398 

4.  Cannot  alter  course  of  highway 398 

6.  Mandamus  does  not  lie  where  company  have  an  election  ....  398,  399 

7.  Railway  cannot  alter  highway  to  avoid  building  bridge 399 

8.  Extent  of  repair  of  bridge  over  railway 399 

9.  Permission  to  connect  branches  with  main  line  not  revocable      .     .  399,  400 

10.  Grant  to  build  railways  across  main  line  implies  right  to  use  them 

as  common  carriers 400 

11.  Railway  responsible  for  injury  by  falling  into  culvert  when  covered 

by  snow 400 

12.  The  right  to  lay  line   across  railway  carries  right  to  lay  as  many 

tracks  as  are  convenient  for  the  business 400 

13.  Damages  for  laying  highway  across  railway 400 

14.  Laying  highway  across  railway  at  grade.     Company  not  estopped  by 

contract  with  former  owner  of  land 400,  401 

SECTION  V. 

BIGHTS  OF   TELEGRAFH   COMPANIES. 

1.  Right  to  "pass  directly  across  a  railway,"  does  not  justify  boring 

under  it 401 

2.  Exposition  of  the  terms  "under"  and  "  across" 401 

3.  Erecting  posts  in  highway  a  nuisance,  even  if  sufficient  space   re- 

main        401,402 

n.  4.  Opinion  of  Crompton,  J 402-404 


ANALYSIS  OP  THE  CONTENTS.  XXXV 

SECTION  VI. 

DCTT    nr   SEOARD   TO   8CB8TITDTED    WORKS. 

1.  Bound  to  repair  bridge  substituted  for  ford,  or  to  carry  highway  over 

railway   .     , 403,404 

2.  The  same  rule  has  been  applied  to  drains,  substituted  for  others     .     .     404 

3.  The  extent  of  this  duty  as  applied  to  bridge  and  approaches       .     .     .    404 

SECTION  vn. 

CON8TRCCTION  OF  CHAHTEH  IN  REGARD  TO  KATDRE  OF  WORKS,  AND  MODE 

OF  C0S8TR0CT10N.  406 

SECTION  vra. 

TERMS  OF  COSTRACT.  —  MONET  PENALTIES.  —  EXCUSE  FOR  KOK-PERFORMANCE. 

1.  Contracts  for  construction  assume  unusual  forms 406 

2.  Estimates  made  by  enjrineer 406 

8.  Money  penalties,  liquidated  damages.     Full  performance    .     .     .     406-408 

4.  Excuses  for  non-performance 408 

5.  Penalty  not  incurred,  unless  upon  strictest  construction 408 

6.  7.  Contractor  not  entitled  to  any  thing  for  part-performance  .  .  .  408,  409 
n.  2.  Proper  construction  of  the  terms  used  in  these  contracts  .  .  .  407,  408 
8.  Contract  for  additional  compensation  must  be  strictly  performed     .     .     409 

SECTION  IX. 

FORM   OF  EXECUTION.  —  EXTRA  WORK.  —  DEVIATIONS. 

1.  No  particular  form  of  contract  requisite  generally 409,  410 

2.  But  the  express  requirements  of  the  charter  must  be  complied  with     .     410 

3.  Extra  work  cannot  be  recovered  of  the  company,  unless  done  upon  the 

terms  specified  in  contract 411 

4.  If  the  company  have  the  benefit  of  work  are  liable 412 

SECTION  X. 

IF   OKB    PARTT   RBPUDIA.TB    THE    CONTRACT,    THE    OTHER    MAT    SUB   PBESBirTLT.  — ' 
INEVITABLE   ACCIDENT. 

1.  Party  repudiating  excuses  the  other 412 

2.  New  contract  vafid 413 

8.  President  cannot  bind  the  company 413 

4.  Effect  of  inevitable  accident 413 

SECTION  XI. 

DECISIONS  OF  REFEREES  ASD   ARBITRATORS   IN  REGARD   TO  CONSTRUCTIOX 

CONTRACTS. 

1.  Award  valid  if  substantially  correct 414 

2.  Court  will  not  set  aside  award,  where  it  does  substantial  justice     .  414,  415 

SECTION  xn. 

DECISIONS  OF   COMPAKT's   ENOIIOCBRS. 

1.  Estimates  for  advances,  mere  approximations,  under  English  practice      416 

2.  But  where  the  engineer's  estimates  are  final,  can  only  be  set  aside  for 

partiality  or  mistake 416 


XXXVl  ANALYSIS   OP  THE  CONTENTS. 

8.  Contractor  bound  by  practical  construction  of  the  contract    .     .     .  416,  417 

4.  Estimates  do  not  conclude  matters  not  referred 417 

5.  If  contractor  consent  to  accept  pay  in  depreciated  orders,  he  is  bound 

by  it 417 

6.  Right  of  appeal  lost  by  acquiescence 417 

7.  Engineer  cannot  delegate  his  authority 417,  418 

8.  Arbitrator  must  notify  parties,  and  act  bona  fide 418 

SECTION  xm. 

RELIEF   IN   EQUITY  FROM   DECISIOXS   OF   COSCPANT'S  EITGIKEERS. 

1.  Facts  of  an  important  case  stated 418-423 

2.  Claim  of  contractor  in  the  bill 424 

3.  Bill  sustained.     Amendment  alleging  mistake  in  estimates     ....     425 

4.  Relief  only  to  be  had  in  equity 425 

6.  Proof  of  fraud  must  be  very  clear 425 

6.  Engineer  being  shareholder,  not  valid  objection 425 

7.  Decision  of  engineer  conclusive  as  to  quality  of  work,  but  not  as  to 

quantity 425 

8.  New  contract  condonation  of  old  claims 425 

9.  Account  ordered  after  company  had  completed  work 425 

10.  Money  penalties  cannot  be  relieved  against  unless  for  fraud  ....     425 
n.  1.  Review  of  the  cases  upon  this  subject 418-424 

11.  Engineers'  estimates  not  conclusive  unless  so  agreed 425,  426 

12.  Contractor,  whose  work  surrendered  by  supplemental  contract,  entitled 

to  full  compensation 426 

13.  Direction  of  umpire  binding  on  contracting  parties,  and  dispenses  with 

certificate  of  full  performance 426 

SECTION    XIV. 

FRAUDS  IK  CONTRACTS  FOR  CONSTRUCTION. 

1.  Relievable  in  equity  upon  general  principles 426 

2.  Statement  of  leading  cases  upon  this  subject 427-429 

3.  Where  no  definite  contract  closed,  no  relief  can  be  granted  .     ,     .  430,  431 

SECTION  XV. 

ENOINEER's  ESTIMATE   WANTING    THROUGH  FAULT  OF  COMPANT. 

1.  In  such  case  contractor  may  maintain  bill  in  equity 431 

2.  Grounds  of  equitable  interference 431,  432 

3.  After  company  terminate  contract,  contractor  will  bfe  enjoined  from 

interference.    And  same  rule  sometimes  extends  to  company  .     .  432,  433 

4.  Stipulation  requiring  engineer's  estimate,  not  void 433 

6.  Not  the  same  as  an  agreement,  that  all  disputes  shall  be  decided  by 

arbitration 433,  434 

6.  Engineer's  estimate  proper  condition  precedent 434 

7.  Same  as  sale  of  goods,  at  the  valuation  of  third  party 434 

8.  The  result  of  all  the  English  cases  seems  to  be,  mat  only  the  question 

of  damages  properly  referable  to  the  engineer 434,  435 

9.  The  rule  in  this  respect  diflFerent,  in  this  country 435 

SECTION  XVI. 

CONTRACTS  FOR  MATERIALS  AND  MACHINERT. 

1.  Manufacturer  not  liable  for  latent  defect  in  materials 435,  436 

2.  Contract  for  railway  sleepers,  terms  stated 436,  437 


ANALYSIS  OP  THE   CONTENTS.  XXXVU 

3.  Construction  of  such  contract 437 

4.  Party  may  waive  stipulation  in  contract,  by  acquiescence  .....     437 

5.  Company  liable  for  materials,  accepted  and  used 437 

SECTION  xvn. 

COKTBACT8  TO  PAT   IN   THK   STOCK  OF  THB   COMPANT. 

1.  Breach  of  such  contract  generally  entitles  the  party  to  recover  the 

nominal  value  of  stock 438 

2.  But  if  the  party  have  not  strictly  performed  on  his  part,  can  only 

recover  market  value 438 

3.  Cash  portion  overpaid,   will  only  reduce  stock  portion  dollar  for 

dollar 4.39-441 

n.  2.  Lawful  incumbrance  on  company's  property,  will  not  excuse  con- 
tractor from  accepting  stock 488-441 

SECTION  xvra. 

TIME  AHD   MODE   OF    PAYMENT. 

1.  No  time  specified,  payment  due  only  when  work  completed   ....  441 

2.  Stock  payments  must  ordinarily  be  demanded 441 

3.  But  if  companv  pay  monthly,  such  usage  qualifies  contract    ....  442 

4.  Contract  to  build  wall  by  cubic  yard,  implies  measurement  in  the  wall  442 

SECTION  XIX. 

REMEDY   ON   CONTRACTS  FOR   RAILWAY   CONSTRUCTION. 

1.  Recovery  on  general  counts 442 

2.  Amount  and  proof  governed  by  contract 442 

SECTION  XX. 
mechanics'  lien. 

1.  Such  lien  cannot  exist  in  regard  to  a  railway 443 

2.  Opinion  of  Scott,  J 443 

SECTION  XXL 

REMEDIES  ON  BEHALF  OF   LABORERS  AND  BUB-CONTBACTORS. 

1.  Sub-contractors  not  bound  by  Stipulations  of  contractor     .     .     .     .443,444 

2.  Laborers  on  public  works  have  a  claim  against  the  company  ....     444 

3.  But  a  sub-contractor  cannot  go  against  the  proprietor  of  the  works, 

although  a  laborer  employed  by  him  may 444 


CHAPTER  XVI. 

EXCESSIVE  TOLLS,   FARE,   AND  FREIOHT. 

1.  English  companies  created  sometimes  for  maintaining  road  only      .     .  445 

2.  Where  excessive  tolls  taken  may  be  recovered  back 445,  446 

3.  So  also  may  excessive  fare  and  freight 446  ■ 

4.  Bj'  English  statute,  packed  parcels  must  be  rated  in  mass 446 

6.  Nature  of  railway  traffic  requires  unity  of  management  and  control .     .  446 


XXXVlll  ANALYSIS  OP  THE   CONTENTS. 

6.  Tolls  upon  railways  almost  unknown  here.     Fare  and  freight  often 

limited 446 

7.  Guaranty  of  certain  profit  on  investment  lawful 447 

8.  Restriction  of  freight  to  certain  rate  per  ton,  extends  to  whole  line  .     .  447 

9.  Need  not  declare  for  tolls 447 

10.  Mode  of  establishing  and  requisite  proof 447 

11.  A  provision  in  a  railway  charter  for  the  payment  of  a  certain  tonnage 

to  the  state  is  only  a  mode  of  taxation 447 

12.  Where  a  company  is  allowed  to  take  tolls  on  sections  of  their  road  this 

makes  each  section  a  distinct  work 448 

13.  14.  Discussion  of  cases  in  New  York  in  regard  to  the  difference  between 

fares  taken  in  the  ears  and  at  the  stations 448,  449 

16.  Fares  fixed  by  statute  are  payable  in  legal  tender  notes 449 

CHAPTER  XVn. 

LIABILITY  FOR  FIRES  COMMUNICATED  BY  COMPXNY^B  EKGINE8. 

1 .  Fact  of  fires  being  communicated  evidence  of  negligence 450 

2.  This  was  at  one  time  questioned  in  England 450 

3.  Opinion  of  Tindal,  Ch.  J.,  upon  this  point 450,451 

4.  English  companies  feel  bound  to  use  precautions  against  fire  .     .     ,  451,  452 
6.  Rule  of  evidence,  in  this  country,  more  favorable  to  companies  .     .  452,  453 

6.  But  the  company  are  liable  for  damage  by  fire  through  want  of  care  on 

their  part 453 

7.  One  is  not  precluded  from  recovery,  by  placing  buildings  in  an  exposed 

situation 453,  454 

8.  When  insurers  pay  damages  on  insured  property,  may  have  action 

against  company 454 

9.  Where  company  made  liable  for  injury  to  all  property,  are  allowed  to 

insure 454,  455 

10.  Construction  of  statutes  making  companies  liable  for  loss  by  fires    .     .     455 

11.  Extent  of  responsibility  of  insurer  of  goods,  to  company 455 

12.  Construction  of  statute  as  to  engines,  which  do  not  consume  smoke  455,  456, 

457 

13.  Construction  of  Massachusetts  statute  and  mode  of  trial 456 

14.  15.  For  what  acts  railway  companies  may  become  responsible  without 

any  actual  negligence 456-461 

16.  Company  not  responsible  for  fires  resulting  from  other  fires  caused  by 

them 462,  463 

CHAPTER  XVm. 

rNJURIES  TO  DOMESTIC  ANIMALS. 

1.  Company  not  liable  unless  bound  to  keep  the  animals  off  the  track    464,  465 

2.  Some  cases  go  even  further,  in  favor  of  the  company 465 

3.  Not  liable  where  the  animals  were  wrongfully  abroad 465 

4.  Not  liable  for  injury  to  animals,  on  land  where  company  not  bound  to 

fence 466 

6.  Where  company  bound  to  fence  are  prima  facie  liable  for  injury  to 

cattle 466 

6.  But  if  owner  is  in  fault,  company  not  liable 466,467 

7.  In  such  case  company  only  liable  for  gross  neglect  or  wilful  injury  .     .     467 

8.  Owner  cannot  recover,  if  he  suffer  nis  cattle  to  go  at  large  near  a 

railway 467,  468 

9.  Company  not  liable  in  such  case,  unless  they  might  have  avoided  the 

injury 468,  469 


ANALYSIS  OP  THE   CONTENTS.  XXXIX 

10.  Where  company  are  required  to  keep  gates  closed,  are  liable  to  any 

party  injured  by  omission 469 

11.  Opinion  of  Gibson,  J.,  on  this  subject 470-472 

12.  17.  Not  liable  for  consequences  of  the  proper  use  of  their  engines  .  472,  473 

13.  Questions  of  negligence  ordinarily  to  be  determined  by  jury  ....     472 

14.  But  this  is  true  only  where  the  testimony  leaves  the  question  doubt- 

ful  472 

15.  Actions  may  be  maintained  sometimes,  for  remote  consequences  of 

ne<j;ligence 472,  473 

16-18.  Especially  where  a  statutory  duty  is  neglected  by  company  .     .  473,  474 

19.  The  question  of  negligence  is  one  for  the  jury 474 

20.  One  who  suffers  an  animal  to  go  at  large  can  only  recover  for  gross 

neglect 474 

21.  Testimony  of  experts  receivable  as  to  management  of  engines  .     .  474,  475 

22.  One  who  suffers  cattle  to  go  at  large  must  take  the  risk 476 

23.  The  company  owe  a  primary  duty  to  passengers,  &c 475,  476 

24.  In  Maryland  company  liable  unless  for  unavoidable  accident ....     476 
26.  In  Indiana  common-law  rule  prevails 476 

26.  In  Missouri,  modified  by  statute 476,  477 

27.  In  California  cattle  may  lawfully  be  suffered  to  go  at  large    ....     477 

28.  29.  Abstract  of  late  cases  in  Illinois 477,  478 

80.  The  weight  of  evidence  and  of  presumption 478,  479 

31.  Company  not  liable  except  for  negligence 479 

32.  Company  must  use  all  statutory  and  other  precautions 479 

83.  Not  competent  to  prove  negligence  of  the  same  kind  on  other  occa- 
sions    479 


CHAPTER  XIX. 

FENCES. 

SECTION  I. 

UPOX  WHOM   BESTS   THB  OBLIOATIOST  TO   MAINTAIN  FENCES. 

1.  By  the  English  statute  there  is  a  separate  provision  made  for  fencing  .     481 

2.  This  provision  is  there  enforced  against  the  companies  by  mandamus  .     481 
8.  But  where  no  such  provision  exists,  the  expense  of  fencing  is  part  of 

the  land  damages 481,  482 

4.  And  where  that  is  assessed,  and  pajTnent  resisted  by  the  company,  the 

land-owner  is  not  obliged  to  fence 482-484 

6.  In  some  cases  it  has  been  held  the  fencing  is  to  be  done  equally,  by 

the  company  and  the  land-owner 484 

6.  Assessment  of  land  damages,  on  condition  company  build  fences,  raises 

an  implied  duty  on  their  part 485-488 

7.  In  some  states,  owners  of  cattle  not  required  to  confine  them  upon 

their  own  land 488 

8.  Lessee  of  railway  bound  to  keep  up  fences  and  farm  accommodations  .     488 

9.  Company  bound  to  fence  land  acquired  by  grant 488 

10.  Farm-crossings  required  wherever  necessary 489 

11.  Where  land-owner  declines  farm  accommodations,  has  no  redress ;  courts 

of  equity  will  not  decree  specific  performance 489,  490 

12.  Fences  and  farm  accommodations  not  required  for  safety  of  servants 

and  employees 490 

13.  Requisite  proof  where  company  liable  for  all  cattle  killed 490 

14.  Party  bound  to  fence  assumes  primary  responsibility 490,  491 

16.  Company  not  responsible  for  injury  at  road  crossings 491 

16.  Railway  companies  not  responsible  for  injury  to  cattle  by  defect  of 

fence  about  yard 491 


Xl  ANALYSIS   OF   THE   CONTENTS. 

17.  Case  of  horse  escaping  through  defect  of  fence 491,  492 

18.  It  must  appear  the  injury  occurred  through  default  of  company  .     .     .     492 

19.  Cattle-guards  required  in  villages,   but  not  so  as  to  render  streets 

unsafe 492 

20.  Company  responsible  for  injuries  through  defect  of  fences  and  cattle- 

guards 492,493 

21.  Courts  of  New  Hampshire  maintain  common-law  responsibility  .     .     .     493 

22.  Company  responsible  as  long  as  they  control  road 493,  494 

23.  Maintaining  fences  along  the  line  of  railway,  matter  of  police    .     .     .     494 

24.  Rule  as  to  land-owner  agreeing  to  maintain  fence,  &c 494 

25.  Company  not  responsible  for  defect  of  fence  unless  in  fault    ....     494 

26.  Railway  not  responsible  in  Indiana  unless  in  fault 494,  495 

27.  Company  not  liable  where  fence  thrown  down  by  others 495 

28.  Where  owner  in  fault  he  cannot  recover  unless,  &c 495 

29.  Rule  of  damages  for  not  building  fence,  &c 495 

80.  Land-owner  must  keep  up  bars 495 

81.  Illustrations  of  the  general  rule 496 

32.  In  actions  under  statute  case  must  be  brought  within  it 496 

33.  In  Pennsylvania  one  required  to  keep  his  cattle  at  home 497 

SECTION  n. 

AGAINST   WHAT    CATTLE   THE    COMPANY   IS   BOUND    TO   FENQB. 

1.  At  common  law  every  owner  bound  to  restrain  his  own  cattle     .     .     .     497 

2.  And  if  bound  to  fence  against  other's  land,  it  extends  only  to  those 

cattle  rightfully  upon  such  land 497,  498 

8.  Company  may  agree  with  land-ovmer  to  fence,  and  this  will  excuse 

damage  to  cattle 498,  499 

n.  5.  Review  of  cases  upon  this  subject 499 

4.  Owner  may  recover  unless  guilty  of  express  neglect 499 

5.  Comment  upon  the  last  case 499,  500 

6.  Statement  of  case  in  Massachusetts .     500 

7.  Further  comment  on  the  last  case 500,  501 

8.  Rule  of  responsibility  as  held  in  Kentucky 501 

9.  Rule  laid  down  in  Ohio 501 

10.  Rule  in  Indiana 501,  502 

11.  Distinction  between  suffering  cattle  to  go  at  large  and  accidental 

escape 602 


CHAPTER  XX. 

TJABn.mES  IN  REGARD   TO  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS. 

SECTION  I. 

LIABILITY   FOE  ACTS   AND   OMISSIONS   OP   CONTRACTORS   AND    THEIR   AGENTS. 

1.  Company  not  ordinarily  liable  for  the  act  of  the  contractor  or  his 

servant 503 

2.  But  if  the  contractor  is  employed  to  do  the  very  act,  company  is 

liable 504 

3.  American  courts  seem  disposed  to  adopt  the  same  rule 504 

4.  Distinction  attempted  between  liability  for  acts  done  upon  movable 

and  immovable  property  not  maintainable 505 

5.  Cases  referred  to  where  true  grounds  of  distinction  are  stated    .     .     .     505 

6.  No  proper  ground  of  distinction  in  regard  to  mode  of  emplojTnent     .     505 

7.  Proper  basis  of  company's  liability  explained 606,  606 


ANALYSIS   OP  THE  CONTENTS.  xli 

8.  So  long  as  one  retains  control  of  work,  he  is  responsible  for  the  con- 

duct of  it 606 

9.  A  master  workman  is  only  responsible  for  the  faithfulness  and  care  of 

his  workmen,  in  the  business  of  their  employment 606 

10.  Railway  company  responsible  for  injuries  consequent  upon  defects  of 

construction,  in  the  course  of  tlie  work  by  a  contractor     ....     607 

11.  But  ordinarily  the  employer  is  not  responsible  for  the  negligent  mode 

in  which  work  is  done,  the  contractor  being  only  employed  to  do  it 

in  a  lawful  and  reasonable  manner 607 

SECTION  n. 

LIABILITY   OF  THE  COMPANT   FOB  THE  ACTS  OF  THEIB  AGENTS  AND  SEETANTS. 

1.  Courts  manifest  disposition  to  give  such  agents  a  liberal  discretion    607,  608 

2.  Company  liable  for  torts  committed  by  agents  in  discharge  of  their 

duties 608 

3.  May  be  liable  for  wilful  act  of  servant  in  the  range  of  his  employ- 

ment   608,  609 

4.  Some  of  the  cases  hold  it  necessary  to  show  the  asseqt  of  the  com- 

pany   609 

n.  6.  Cases  upon  this  subject  reviewed 509-612 

6.  Most  of  the  cases  adhere  to  the  principle  of  respondeat  superior    .  610,  611 

6.  But  it  seems  not  to  have  been  considered  that  the  company  is  pres- 

ent      612,613 

7.  The  cases  seem  to  regard  the  company  as  always  absent 618 

8.  In  cases  where  the  company  owe  a  special  duty,  the  act  of  the  servant 

is  always  that  of  the  company 613 

9.  It  seems  more  just  and  reasonable  to  regard  the  company  as  always 

present  in  the  person  of  their  agent , 613 

10.  What  shall  amount  to  ratification  of  the  act  of  an  agent  by  a  corpora- 

tion difhcult  to  define 614 

11.  How  corporations  may  be  held  responsible  for  the  publication  of  a 

libel 614,616 

12.  The  powers  of  a  corporation  are  such  only  as  are  conferred  by  charter    516 

13.  False  certificate  of  capital  being  paid  in  money 516 

14.  Gas  company  not  bound  to  supply  gas  to  all  who  require  it    ...     .     616 
16.  Company  may  become  responsible  for  false  imprisonment     .     .     .  515,  516 

16.  Company  responsible  for  injury  done  by  various  animals  kept  by  them 

or  sunered  to  remain  about  their  stations 516,  617 

17.  The  general  manager  of  a  railway  company  may  bind  them  for  medical 

aid  for  servant  injured  in  their  employment 617 

SECTION  m. 

INJDBIE8  TO  SERTANTS,  BT  XEOLECT  OF  FELLOW-SEBVANTS,  AND  C8E  OF  MACHINERT. 

1.  In  general  no  such  cause  of  action  exists  against  company     .     .     .  517,  618 

2.  But  if  there  is  any  fault  in  employing  unsuitable  servants  or  machinery 

they  are  liable 618-620 

3.  But  not  liable  for  deficiency  of  help  or  for  not  fencing  road   ....     620 

4.  Has  been  questioned  whether  rule  applies  to  servants  of  different 

grades 620,621 

6.  Rule  not  adopted  in  some  states.     Case  of  slaves.     Scotland     .     .621,622 

6.  No  implied  contract,  by  ship-owners,  that  ship  is  sea-worthy     .     .  623,  624 

7.  But  rule  does  not  apply  where  servant  has  no  connection  with  the  par- 

ticular work 624 

n.  16.  Cases  reviewed  in  England,  Scotland,  and  America    ....  622-624 

8.  Recent  J)nglish  case  illusti'ating  the  English  doctrine 624,  626 

9.  Statement  of  the  law  in  Kentucky  and  review  of  the  subject .     .     .  626,  626 


Xlii  ANALYSIS   OF  THE   CONTENTS. 

10.  Subject  reviewed  by  Chief  Justice  Shaw 527,  630 

11.  Company  may  show  in  excuse,  that  the  damage  accrued  from  the  ser- 

vant disregarding  his  instructions ^ 530 

12.  The  servants  of  one  company,  not  fellow-servants  with  those  of  another 

company,  using  the  same  station,  where  the  injury  occurred  .     .     .     530 

13.  The  fact  that  the  injury  occurred  by  reason  of  the  intoxication  of  a 

fellow-servant,  and  that  his  being  an  habitual  drunkard  was,   or 
ought  to  have  been,  known  by  the  company,  tends  to  show  culpable 

neglect  on  their  part 530,  531 

Late  case  in  Missouri ".....     531 

1.  Where  a  passenger  is  injured  on  a  railway  the  prima  facie  pre- 

sumption is,  that  it  resulted  from  the  want  of  due  care  on  the 
part  of  the  company 531 

2.  But,  nevertheless,  it  is  competent  to  prove  the  damage  occurred 

without  their  fault 531,  532 

8.  One  who  rides  upon  a  free  pass,  or  in  a  baggage-car,  is  not  thereby 
deprived  of  his  remedy  against  the  company  for  injuries  received 
through  their  want  of  due  care,  provided  he  was  at  the  time  a 
passenger  and  without  fault  on  his  own  part 532 

SECTION  IV. 

INJUBIE8   BY  DEFECTS   IN   HIOHWATS   CAUSED   BY   COMPANY'S   WORKS. 

1.  Liable  for  injuries  caused  by  leaving  streets  in  insecure  condition   .  533-537 

2.  Municipalities  liable  primarily  to  travellers  suflfering  injury    .     ,     .  537,  538 

3.  They  may  recover  indemnity  of  the  company 538,539 

4.  Towns  liable  to  indictment.     Company  liable  to  mandamus  or  action  .     539 

5.  Construction  of  a  grant  to  use  streets  of  a  city 539 

6.  Such  grant  does  not  give  the  public  any  right  to  use  the  tracks  .     .     .     540 

7.  Bound  to  keep  highways  in  repair 540 

8.  Municipalities  not  responsible  for  injuries  by  such  grant 540 

9.  Canal  company  not  excused  from  maintaining  farm  accommodations  by 

railway  interference 540 

10.  Railway'  track  crossing  private  way 540,  541 

11.  One  being  wrong-doer  in  opening  company's  gates  cannot  recover  .     .     541 

SECTION  V. 

LIABILITY   FOR   INJURY   IN   THE    NATURE   OF   TORTS. 

1.  Railway  crossings  upon  a  level  always  dangerous 541,  542 

2.  Company  not  excused  by  use  of  the  signals  required  by  statute  .     .     .     542 

3.  Party  cannot  recover  if  his  own  act  contributed  to  injury  ....  542-544 

4.  But  company  liable  still  if  they  might  have  avoided  the  injury    .     .  545-547 

5.  If  company  omit  proper  signals,  not  liable,  unless  that  produce  the 

injury 547 

6.  Not  liable  for  injury  to  cattle  trespassing,  unless  guilty  of  wilful 

wrong 547, 548 

7.  General  definitions  of  companj^'s  duty 549,  550 

8.  Action  accrues  from  the  accrumg  of  the  injurj' 650,  551 

9.  Where  injury  Is  wanton,  jurj'  may  give  exemplary  damages  ....     551 

10.  One  who  follows  direction  of  gate-keeper  excused 551 

11.  Company  responsible  for  injury  at  a  crossing  opened  by  themselves  for 

public  use 551 

12.  The  responsibility  of  railway  companies  for  damages  to  persons  cross- 

ing, mainly  matter  of  fact,  and  each  case  depends  on  its  peculiar 
circumstances 661,  662 


ANALYSIS   OP  THE   CONTENTS.  zlui 

SECTION  VI. 

MISCONDUCT  or  RAILWAT   OPERATIVES   SHOWX   BT  EXPERTS. 

1.  The  inana<:;oment  of  a  train  of  cars  is  so  far  matter  of  science  and  art, 

that  it  is  proper  to  receive  the  testimony  of  experts 652,  563 

2.  In  cases  of  alleged  torts  company  not  bound  to  exculpate 653 

8.  So,  too,  the  plaintiff  is  not  bound  to  produce  testimony  from  experts  .     663 
4.  The  jury  are  the  final  judjres  in  such  cases.     But  omission  to  produce 

testimony  of  experts  will  often  require  explanation 553,  554 

n.  6.  General  rules  of  law  in  regard  to  the  testimony  of  experts     .     .  654,  565 

CHAPTER  XXI. 

BAILWAY  DIRECTORS. 

SECTION    I. 
XXTE5T   OF  THE  AITTHORITT  OV  RAILWAY   DIRECTORS. 

1.  Notice  to  one  director,  if  express,  is  sufficient 556,  657 

2.  Applications  to  the  legislature  for  enlarged  powers,  and  sale  of  com- 

pany's works,  require  consent  of  shareholders 557 

8.  Constitutional  requisites  must  be  strictly  followed 557 

4.  Directors,  or  shareholders,  cannot  alter  the  fundamental  business  of 

the  company 558,  559 

5.  Inherent  difficulty  of  defining  the  proper  limits  of  railway  enterprise  .     559 
n.  9.  Opinion  of  Lord  Langdale,  ana  review  of  cases  on  this  subject  .  559--563 

6.  An  act  ultra  vires  can  only  be  confirmed  by  actual  and  not  construc- 

tive assent 560-563 

7.  The  directors  of  a  trading  company  may  give  bills  of  sale  in  security 

for  debts  contracted  by  them 563 

8.  Directors  cannot  bind  company  except  in  conformity  with  charter   .     .     564 

9.  Company  cannot  retain  money  obtained  by  fraud  of  directors     .     .     .     564 

10.  But  It  must  appear  the  plaintiff  was  misled  without  bis  own  fault     .     .     564 

11.  Company,  by  adopting  act  of  directors,  are  liable  to  make  recompense 

564, 565 

12.  A  prospectus  and  report  should  contain  the  whole  truth 665 

13.  Directors  cannot  issue  shares  to  procure  votes  and  control  corpora- 

tion      565 

14.  What  will  amount  to  fraud  in  the  reports  of  the  company 665 

16.  Directors  responsible  for  fraudulent  acts  and  representations     .     .     .  566 

16.  Extent  of  power  of  directors 666 

SECTION  n. 

WHEN   DIRECTORS  BECOME   PERSONALLY   LIABLE. 

1.  Not  liable  personally,  for  any  lawful  act  done  as  directors      .     .     .  666, 667 

2.  But  are  liable  upon  express  undertaking  to  be  personally  holden     .     .     667 
8.  Are  liable  personally,  if  they  assume  to  go  beyond  their  powers      .     .     568 

4.  Extent  of  powers  affected  often  by  usage  and  course  of  business     .  568,  669 

5.  But  if  contract  is  Iwyond  the  |>ower  of  company,  or  not  in  usual  form, 

directors  personally  liable 569 

6.  Statement  of  case  illuatrating  last  point 669 


xliv  ANALYSIS   OP  THE   CONTENTS. 


SECTION  ra. 

COMPENSATION   FOR   8EBVICB   OF   DIRECTORS. 

1.  In  England,  directors  of  railways  not  entitled  to  compensation  for  ser- 

vices  569, 570 

2.  But  the  company  may  grant  an  annuity  to  a  disabled  officer  ....     570 

3.  In  this  country  are  entitled  to  compensation,  in  conformity  to  the 

order  of  the  board 570 

4.  Some  American  cases  follow  the  English  rule 571 

6.  Official  bonds  strictly  limited  to  term  for  which  executed 671 

SECTION  IV. 

RECORDS   OF   THE   PROCEEDINGS   OF   DIRECTORS. 

1.  English  statutes  require  minutes  of  proceedings  of  directors  and  make 

it  evidence 571 

2.  Presumptions  in  favor  of  their  containing  all  that  passed 572 

8.  Company  will  ratify  unauthorized  act  of  directors  by  acquiescence  .     .     572 

SECTION  V. 

AUTHORITY   OP  DIRECTORS   TO  BORROW  MONET,  AND   BUY   GOODS. 

1.  Authority  of  directors  to  bind  company,  express  or  implied  .     .     .  572,  573 

2.  General  agent  will  bind  company  within  scope  of  his  duties.     Direc- 

tors presumed  to  assent  to  his  contracts 573 

8.  Contracts  under  seal  of  compa-ny  prima  facie  bind  them  ....  573,  574 

4.  Strangers  must  take  notice  of  general  want  of  authority  in  directors, 

but  not  of  mere  informalities 574,  575 

5.  Cannot  subscribe  for  stock  of  other  companies 575 

6.  May  borrow  money  if  requisite 575 

7.  How  far  directors  may  bind  company  by  accepting  land  in  payment  of 

subscription 575,  676 

SECTION   VI. 

DUTY   OF   RAILWAY   DIRECTORS   TO    SERVE   THE    INTERESTS   OF   COMPANY. 

1.  General  duty  of  such  office  defined 576 

2.  Claim  for  secret  service  and  influence  with  directors 576 

3.  Opinion  of  Justice  Hoffman  upon  the  legality  of  such  contracts  .     .  576-581 
n.  3.  Cases  reviewed  upon  the  subject  of  secret  services 577-581 

4.  Directors  cannot  buy  of  themselves  for  the  company.     What  amounts 

to  ratification 581,  582 

5.  The  point  further  illustrated.     Authority  of  directors  •• 582 

6.  Purchase  of  shares  to  buy  peace 582 

7.  Director  may  loan  money  to  company 682 

8.  Director  de  facto  sufficient 583 

9.  Hotel  company  may  lease  premises  to  others 683 

10.  Director  cannot  recover  for  work  done  for  company 583 

11.  Contract  of  projector  not  binding  on  company 583 

12.  Director  cannot  act  where  interested 583,  584 

13.  Court  will  not  act  on  petition  of  member  who  is  a  mere  puppet  for 

others 584 


ANALYSIS   OP  THE   CONTENTS.  xlv 

SECTION  vn. 

BIOHT  TO  'dismiss  EVPLOTEES.  —  RITLB   OF  DAMAGES,  WHEIT  DOIOE  WBONOFULLT. 

1.  Some  cases  hold,  that  if  wrongfully  dismissed  may  recover  salary  .     .    684 

2.  English  courts  do  hot  favor  this  view.     Case  stated  by  English  judges 

584,  685 

8.  The  American  cases  have  sometimes  taken  the  same  view 585 

4.  Where  the  contract  provides  for  a  term  of  wages,  after  dismissal,  it  is 

to  be  regarded  as  liquidated  damages 586 

6.  Statute  remedy,  in  favor  of  laborers  of  contractors,  extends  to  laborers 

of  sub-contractors 586 

CHAPTER  XXn. 

ARRANGEMENTS   BETWEEN  DIFFERENT  COMPANIES. 

SECTION   L 

LEASES,  AND  SIMILAR   C05TRACTS,  BEQUISB  THE   ASSENT  OF  LEOISLATXTBE. 

1.  By  English  statutes  one  company  may  pass  over  road  of  another,  but 

contract  binding 687 

2.  But  cannot  transfer  duty  of  one  company  to  another,  without  legisla- 

tive grant 687,  588 

8.  OriginiQ  company  liable  to  public,  after  such  lease.     But  lessee  not 

excused  ...................  688-590 

4.  Courts  of  equity  enjoin  companies  from  leasing,  without  legislative 

consent 691 

6.  But  such  contracts,  made  by  legislative  grants,  are  to  be  carried  into 

effect 691 

6.  Majority  of  company  may  obtain  enlarged  powers,  with  new  funds  .     .    691 

7.  So  the  majority  may  defend  against  proceedings  in  legislature    .     .     .     692 

8.  Legislative  sanction  will  not  render  valid  contracts  ultra  vires     .     .  692,  593 

9.  Railway  company  cannot  assume  duties  of  ferry,  without  legislative 

grant 698 

10.  The  grant  to  a  railway  of  the  implied  ri^ht  to  establish  a  ferry  over  a 

public  river  directly  beyond  the  terminus  of  its  road,  does  not  ex- 
tend the  responsibility  of  the  company  to  the  ferry 693 

11.  Such  a  ferry  may  become  an  encroachment  upon  another  by  carrying 

passengers  gratuitously 693 

12.  The  grant  to  a  railway  of  a  ferry  in  express  terms  will  not  authorize 

them  to  carry  any  thing  except  passengers  and  freight  passing  over 
their  line 593 

SECTION  n. 

NECESSITT   OF   CONTBACTS  OF   COBPOBATIOX8  BEINO   UITDEB  SEAL. 

1.  The  English  courts  manifest  great  reluctance  to  abandon  the  former 

rule  of  law  on  this  subject 694 

n.  2.  Elxtended  review  of  the  English  and  some  of  the  American  cases  694-601 

2.  Reference  to  later  decisions 696-601 

3.  What  amounts  to  a  seal  according  to  modem  use 601 


xlvi  ANALYSIS   OP  THE   CONTENTS. 

SECTION  ni. 

DUTT   OF    THE    RESPECTIVE    COMPANIES   TO   PASSENGEB8   AND   OTHERS. 

1.  Company  bound  to  keep  road  safe.     Act  of  other  companies  no  excuse    602 

2.  Some  cases  hold  that  passengers  can  only  sue  the  company  carrying 

them 603 

8.  Passenger-carriers  bound  to  make  landing-places  safe 604 

4.  But  those  who  ride  upon  freight  trains,  by  favor,  can  only  require  such 

security  as  is  usual  upon  such  trains 604 

6.  Owners  of  all  property  bound  to  keep  it  in  state,  not  to  expose  others 

to  injury 604,  605 

6.  This  rule  extends  to  railways,  where  persons  are  rightfullp^  upon  them  .     605 
n.  3.  Cases,  as  to  the  necessity  of  privity  of  contract  existmg,  reviewed 

603,  604 

7.  One  who  keeps  open  public  works  is  bound  to  keep  them  safe  for  use 

605,  606 

8.  Corporations  presumptively  responsible  to  the  same  extent  as  natural 

persons  in  the  same  situation 606 

9.  A  railway  company  drawing  the  cars  of  a  connecting  road  over  its  own 

line  is  responsible  as  a  common  carrier 606,  607 

SECTION  IV. 

EXTENT  OF   THE  POWERS   AND  DUTIES   OF  LESSEES  OF  KAILWATS. 

1.  Statement  of  the  points  in  an  important  English  case 607-610 

2.  Lessees  of  railways  liable  for  their  own  acts,  and  for  many  acts  of 

lessors 610,  611 

SECTION  V. 

CONTRACTS   BETWEEN   DIFFERENT    COMPANIES   REGULATING   THE   TRAFFIC. 

1.  Such  contracts  generally  held  valid  and  binding 611,  612 

2.  Arrangements  to  avoid  competition  valid 612 

SECTION  VI. 

WHAT    18   REQUISITE   TO   CONSTITUTE   A    PERPETUAL    CONTRACT    BETWEEN    DIFFER- 
ENT   RAILWAY    COMPANIES. 

1.  Railway  connections  commonly  temporary 612,  613 

2.  The  matter  is  one  mainly  of  public  convenience  and  so  subject  to  leg- 

islative control 613 

SECTION  vn. 

CONTRACTS  BT  RAILWAYS   ULTRA  VIRES,   AND   ILLEGAL. 

1.  Contracts  to  make  erections  not  authorized  by  their  charter  .     .     .  613,  614 

2.  Contracts  to  indemnify  other  companies  against  expense 614 

3.  Contracts  to  divide  profits 614 

4.  Illustration  of  the  doctrine  ultra  vires 615 

5.  How  far  railways  may  accept  bills  of  exchange.     Railway  companies 

not  empowered  to  make  bills  and  notes  except  from  necessity      .  615,  616 

6.  Contracts  uUra  vires  cannot  be  specifically  enforced  against  the  direc- 

tors     616 


ANALYSIS  OP  THE   CONTENTS.  xlvii 

7.  Moner  unlawfully  borrowed  company  must  refund 616,  617 

8.  How  far  acts  ultra  vires  confinned  by  acquiescence 617 

9.  Companv  not  restrained  from  making  unlawful  payments  on  the  ground 

of  policy 617,618 

10.  Decision  rests  on  no  safe  grounds 618 

11.  It  seems  too  much  like  paying  black  mail  to  buy  peace 618 

1.  The  power  of  a  receiver  to  sue  in  the  name  of  the  corporation  .     .     619 

2.  Foreign  railway  corporation  acquired  no  prerogative  rights  by  leas- 

ing a  portion  of  the  track  of  a  domestic  railway 619 

S.  Statement  of  the  contract  and  ground  of  holding  it  void,  as  being 

ultra  vires 619 

4.  Further  reasons  why  such  contracts  cannot  be  specifically  performed 

here 619,620 

n.  S.  Comments  upon  the  preceding  propositions 620 

SECTION  vni. 

COMPAKIS8  BXOKXBATBD  FBOM  CONTBACT8,  BT  ACT  Or  LBOISLATURB      .     620,  621 

SECTION  IX. 

WIDTH  OF  GACOE. — JCNCTIOX  WITH  OTHER  ROADS. 

1.  Where  the  act  requires  broad  gauge,  does  not  prohibit  mixed  gauge    .  621 

2.  Permission  to  unite  with  other  road,  signifies  a  road  de  facto      .     .     .  621 

3.  Equity  will  sometimes  enjoin  company  against  changing  gauge    .     .     .  622 

4.  Contract  to  make  gauge  of  the  companies  the  same,  although  contrary 

to  law  of  state,  at  its  date,  may  be  legalized  by  statute     ....     622 


CHAPTER  XXIII. 

MANDAMUS. 

SECTION  I. 

OBHBBAL  RULES   OF   LAW   OOTERNINO   THIS   REMEDT. 

1.  Regarded  as  a  supplementary  remedy 623 

2.  Mode  of  procedure 624 

(1.)  Matter  of  discretion 624 

(2.)  Alternative  writ 624,  625 

3.  Proceedings  in  most  of  the  American  courts 626 

4.  English  courts  do  not  allow  application  to  be  amended 626 

6.  Recent  English  statute  has  essentially  simplified  proceedings  .     .     .  626,  627 

6.  Mode  of  trying  the  truth  of  the  return 627,628 

7.  Costs  rest  in  the  discretion  of  court 628 

8.  Mode  of  service 628,  629 

9.  By  late  English  statutes  mandamus  eOects  specific  performance  .     .     .     629 

SECTION  n. 

PARTIdTLAR  CASES   WHBRE   MAKDAXCS  LIBS  TO  BKFOBCB   DUTY  OF   CORPORA- 
TIONS   630, 681 


xlviii  ANALYSIS   OP  THE  CONTENTS. 


SECTION  m. 

MANDAMCS  THE  APPBOFKIATE  REMEDY  TO  RESTORE  OFFICERS  AXD  MEMBERS 
OF  CORPORATION'S  TO  THE  DISCHARGE  OF  THEIR  PROPER  FUXCTIOXS, 
WHERE  THET  HAVE  BEEN  DEPRIVED  OF  THE  SAME  THROUGH  THE  AGEN'CT 
OF   THE    CORPORATION. 

1.  The  writ  formerly  granted  only  to  restore  to  public  office  ....  632-635 

2.  Now  granted  in  all  cases  where  of  value  and  sufficiently  permanent  636,  637 

8.  Not  available,  where  election  annual  and  facts  traversed 637 

4.  Claimant  must  have  permanent  and  vested  interest 637 

SECTION  IV. 

KANDAJCCS  TO  COMFBL  COXPAHT  TO  COKPLETB  THEIR   ROAD. 

1.  English  courts  have  required  this  upon  a  general  grant      ....  638,  639 

2.  But  these  cases  overruled.     Not  required  now,  unless  under  peculiar 

circumstances 639 

3.  Becent  case  in  New  York  Court  of  Appeals 640 

SECTION  V. 

IK  WHAT   CASES  THIS   IS  THE  PROPER  REMEDY. 

1.  Where  the  act  is  imperative  upon  the  company  to  build  road      .     .     .     640 

2.  Mandamus  more  pro|>er  remedy  than  injunction 641 

3.  Commissioners  of  public  works  not  liable  to  this  writ 641,  642 

4.  Public  duties  of  corporations  may  be  so  enforced 642 

5.  Facts  tried  by  jury.     Instances  of  this  remedy 643 

6.  Cannot  be  substituted  for  certiorari,  when  that  is  taken  away      .     .     .     643 

7.  Requiring  costs  to  be  allowed 643,  644 

8.  Other  instances  of  its  application 644 

9.  Lies  where  the  duty  is  clear,  and  no  other  remedy 644 

10.  Not  awarded  to  control  legal  discretion 644,  645 

11.  Does  not  lie  to  try  the  legality  of  an  election 646 

12.  Lies  to  compel  transfer  of  stock 646 

SECTION  VL 

PROPER  EXCUSES,  OR  RETCRX8  TO  THE  WRIT.  * 

1.  Company  may  return  that  powers  had  expired  at  date  of  writ     .     .  646,  647 

2.  May  show  want  of  funds  to  perform  duty 647,  648 

8.  But  cannot  show  that  road  is  not  necessary,  or  would  not  be  remunera- 
tive  648 

4.  May  quash  part  of  return,  and  require  answer  to  reminder  ....  648 

6.  Counsel  for  writ  entitled  to  begin  and  close 648 

6.  Cannot  impeach  the  statute  in  reply  to  the  writ 648 

7.  Peremptory  writ  cannot  issue  till  whole  case  tried 648 

8.  Will  not  quash  return  summarily 649 

9.  No  excuse  allowed  for  not  complying  with  peremptory  writ    ....  649 

SECTION  vn. 

WHERE   THE   ALTERNATIVE   WRIT   REQUIRES   TOO  MUCH,    IT   IS   BAD,  FOR   THAT 

WHICH   IT  MIGHT   HAVE  MAINTAINED 649,  650 


ANALYSIS   OF  THE   CONTENTS.  xlix 

SECTION  vra. 

BHFOBCIWO   PAYMENT   OF   MONET   AWARDED   AOAINST     RAILWAYS. 

1.  The  enforcement  of  payment  of  money  against  corporations  by  mandA- 

mus 650 

2.  Where  debt  will  lie  the  party  not  entitled  to  mandamus 651 

3.  Mandamus  proper  to  compel  payment  of  compensation  under  statute  .     651 

4.  Mandamus  not  allowed  in  matters  of  equity  jurisdiction  ....  651,  652 
6.  Contracts  of  company  not  under  seal  enforced  by  mandamus  .  .  .  652 
6.  Where  a  statute  imposes  a  specific  duty,  an  action  will  lie      ....     652 

SECTION  IX. 

THS  WHIT  80MBTIMK8  DENIED   IN  MATTERS  OF  FRIVATB  CONCERN. 

1.  Mandamus  denied  to  compel  company  to  divide  profits 653 

2.  Allowed  to  compel  production  and  inspection  of  corporation  books      .     653 

3.  Will  compel  the  performance  of  statute  duty,  but  not  to  undo  what  is 

done 654 

4.  Allowed  to  compel  the  production  of  the  register  of  shares,  or  the  reg- 

istry of  the  name  of  the  owner  of  shares,  and  in  other  cases  .     .  654,  655 

5.  It  is  the  common  remedy  for  restoring  persons  to  corporate  offices  of 

which  they  are  unjustly  deprived 655,  656 

SECTION  X. 

THIS   REMEDT   LOST   BT  ACQUIESCENCE.  —  PROCEEDING   MCST   BE   BONA  FIDE. 

1.  Remedy  must  be  sought  at  earliest  convenient  time 657 

2.  Courts  will  not  hear  such  case,  merely  to  settle  the  question  .     .     .  657,  658 

3.  In  New  York  may  be  brought  any  time  within  statute  of  limitations    .     658 

SECTION  XI. 

MANDAMUS   ALLOWED   WHERE    INDICTMENT    LIES. 

1.  Party  may  have  mandamus  sometimes  where  act  is  indictable      .     .     .     658 

2.  Allowed  to  compel  company  not  to  take  up  their  rails 659 

3.  Will  not  lie  where  there  is  other  adequate  remedy 659 

SECTION  xn. 

JUDGMENT  VPOH  PETITION  FOR  MANDAMUS  RBTI8ABLB   IN   EBBOB     .  669,  660 
\ 

CHAPTER  XXIV.  ' 

WRIT  OP  CERTIORARI. 

SECTION    I. 
TO   REMOTE   PROCEEDINGS   AOAINST   RAILWAYS. 

1.  Lies  to  bring  up  unfinished  proceedings,  or  those  not  according  to  the 

common  law 661,  662 

2.  Tliis  writ  is  one  of  very  extensive  application,  unless  controlled  by 

statute 662 

3.  Where  the  case  is  fully  heard  on  the  application,  judgment  may  be 

entered 663 

d 


1  ANALYSIS   OP  THE   CONTENTS. 

SECTION  II. 

WHERE    THERE    IS   AN   EXCESS   OF  JURISDICTIOX 663 

SECTION  III. 

JURISDICTION   AND    MODE    OF   PROCEDURE. 

1.  Lies  in  cases  of  irregularity,  unless  taken  away  by  statute     ....     664 

2.  Inquisitions  before  officers,  not  known  in  the  law 664 

8.  Granting  the  writ  is  matter  of  discretion.     Defects  not  amendable  .  664,  665 
4.  Not  allowed  for  irregularity  in  proceedings,  or  evidence,  or  form  of 

judgment 665 

CHAPTER  XXV. 

INFORMATIONS  IN   THE   NATURE   OF  QUO  WARRANTO. 

1.  General  nature  of  the  remedy  .  • 666,667 

2.  Its  exercise  confined  to  the  highest  court  of  ordinary  civil  jurisdiction     667 

3.  In  the  English  practice,  this  remedy  not  extended  to  private  corpora- 

tions   667 

4.  In  this  country  it  has  been  extended  to  such  corporations 668 

5.  This  remedy  will  only  remove  an  usurper,  but  not  restore  the  one  • 

rightfully  -entitled 668 

6.  Will  not  lie  where  railway  company  open  part  of  their  road  ....     669 

7.  Nor  where  company  issue  stock  below  par,  or  begin  to  build  road  be- 

fore subscription  full 669 

8.  Form  of  the  judgment 669,  670 

9.  Rules  in  regard  to  taxing  costs 670 

10.  Used  to  test  corporate  existence  and  power 670 

11.  Penalties  provided  by  charter  cannot  subsequently  be  increased  to  a 

forfeiture 670 

12.  But  a  grant  of  corporate  franchises  may  be  annulled  when  its  purposes 

have  failed :     •     • ^'^^'  ^'^1 

13.  Scire  facias  the  proper  remedy  to  determine  forfeiture 671 

14.  Insufficient  excuses  for  failure  to  repair  a  turnpike  road 671 

15.  This  remedy  does  not  supersede  any  equitable  redress 671 


TABLE   OF   CASES. 


Paoi. 
A.  &  N.  L.  Railw.  v.  Smith  173 

A.  &  S.  Railw.  c.  Baugh  487 

r.  Carpenter  261 

A.  &  St.  L.  Railw.  V.  Commission- 
ers of  Cumljerland  County  270,  277 
Aberdeen  Railw.  v.  Blakie  85 

Abervstwith  Railw.,  in  re  48 

Abraham  v.  Great  Northern  Railw.  822 
c.  Reynolds  529 

Ackland  v.  Lewis  112 

Adair  v.  Shaw  169 

Adams  r.  Ferick  151 

r.  Frye  126 

V.  London     &  .  Blackwall 

Railw.  369 

V.  Saratoga  «&  Wash.  Railw. 

294   298 
Adderly  c.  Storm  137^  l:^ 

Adler  r.  Milw.  Patent  Brick  Co.     171 
Adley  r.  WhitsUble  Co.  89 

Agar  e.  Athena;um  Life  Ass.  Co.    574 
V.  Regent's  Canal  Co.  195 

Agricultural  Bank  r.  Burr  1 16 

V.  Wilson  116 

Agricultural    Branch    Railw.    v. 

Winchester  176 

Aikin  r.  Western  Railw.  593 

Alabama  &  Tenn.  Rivers  Railw.  r. 

Kidd  508 

Albany  N.  Railw.  V.  Lansing         261, 

267,  294 
Aldham  v.  Brown  47 

Aldred  r.  North  Midland  Railw.      42, 

390 
Aldrich  r.  Cheshire  Railw.  288,  335 
Aldridge  r.  Great  Western  Railw.  450 
Alexander  r.  Cr}-stal  Palace  Railw.  354 
Alexandra  Park  Co.,  in  re  438 

Algeo  r.  Algeo  685 

Alger  p.  Miss.  &  Mo.  Railw.  477 

Alleghany  p.  Ohio  &  Pennsylvania 
Railw.  307,  308 


Paoi. 

Alleghanv  City  p.  McClurkan  563 

Allen  p.  ilayward  505 

p.  Montgomerv  R.  164 

Allyn  p.  Prov.  W.  &  B.  Railw.        270 
Alton  Railw.  v.  Northcott  416 

Ambergate,  N.  &  Boston  &  E.  J. 
R.  p.  Coulthard  179 

r.  Midland  Railw.  335 

p.  Mitchell  148,  149 

Ambergate  R.  p.  Norcliffe  179 

Ammermon  p.  Wyoming  Land  Co.  540 
Anderson  p.  Kerns  Draining  Co.       67 
p.  N.  &  R.  Railw.  67 

p.  Ohio  &  Miss.  Railw.    166 
Andover,  Case  of  626 

Andover  Turnpike  p.  Gould  162 

p.  Hay  162 

Andrews  r.  City  of  Portland  408 

p.  Ohio  &  Miss.  Railw.     174 
Androscoggin  Railw.  Co.  p.  Rich- 
ards 97 
Androscoggin  &  Kenebec  Railw.  p. 

Androscoggin  Railw.  613 

Anglo  California  G.  M.  Co.  p. 

Lewis  167 

Anonymous  56,  60,  655 

Anstruther  v.  East  Fife  Railw.         641 
Anthony  Street,  matter  of  271 

Appleby  p.  Meyers  413 

Appleford's  case  645 

Applegate  p.  Lexington  &  Ohio 

Railw.  298 

Armington  p.  Bamet  229,  266 

Armstrong  p.  Burnet  151 

p.  Waterford  &  Limer- 
ick liailw.  366 
Arnold  p.  Mayor  of  Poole  349, 595,  598 
p.  Ruggles  112 
Arthur  p.  Commercial  &  Railroad 

Bank  248 

Ashby  p.  Eastern  Railw.  270,  271,  340 
Ashtabula  &  New  L.  Railway  v. 
Smith  62,  205,  392 


Hi 


TABLE  OF  CASES. 


Ashton  V.  Lord  Longdale  111 

Ashworth  v.  Stanwix  618 

Aspinwall  v.  Ohio  &  Miss.  Railw.    202 
Assop  V.  Yates  619 

Aston  V  Boore  225 

Asylum  v.  Plienix  644 

Athenaniin   Life   Ins.    Co.,  in  re 

Sheffield  143 

Atkinson    v.    Marietta     &    Cin. 

Railw.  265,  393 

Atlantic,  &c.,  Railw.  v.  Sullivant     62, 

238 
Atlantic  Cotton  Mills  r.  Abbott  176 
Atlee  V.  Backhouse  446 

Attala  Co.  r.  Graham  645 

AttVGen.  V.  Bir.  &  Oxford  J.  R.  641, 

669 
V.  Corporation  of  Rye  60 
V.  Davy  83 

V.  Detroit  &  Erie  Plank- 
Road  Co.  398 
V.  Dorset  Railw.  268 
V.  Great  North'n  Railw.  61, 
144 
V.  Hudson  River  Railw.  324 
V.  Leaf  667 
V.  London  &  Southamp- 
ton Railw.  405 
V.  Nichol  337 
V.  S.  &  S.  Railw.  227 
V.  Sheffield    Gas  Con- 
sumers' Co.  337 
V.  Stevens  320 
V.  Tewkesburv  &  Great 

Malvern 'Railw.  9,  394 
Aug.  &  Sav.  Railw.  v.  McElmurry  643 
Aurora  v.  West  ^  392 

Aurora  Branch  Railw.  v.  Grimes     472 
Austin,  ex  parte  642 

Australian  Royal  Mail  Co.  v.  Mar- 

zetti  696 

Aycock  V.  Williams  662 

Ayles  ».  L.  E.  Railw.  602 

Aylesbury  R.  v.  Mount  182,  185 

V.  Thomson  156 

Ayres  v.  Morris  &  Essex  Railw.       88 


B. 


B.  &  S.  Railw.  V.  Compton  290 
B.  O.  &  M.  Railw.  V.  Smith  245 
Babcock  v.  Western  Railw.  218,  328 
Backhouse  v.  Bonomi  550 
Backus  V.  Lebanon  266,  268 
Bagge,  ex  paiie  114 
Bagnall  ».  London  &  North  West- 
ern Railw.  342 


Bagshawe  ».  Eastern  Union  Railw.     6, 

27,  31 

Bailey  ».  Hollister  201 

r.  Mayor  of  New  York        332 

V.  Phil.  &  Wil.  Railw.  323 

V.  Western  Vermont  Railw. 

437 
Baker,  ex  parte  664 

r.  Johnson  247,  283 

Baldwin  v.  Western  Railw.  550 

Bale  r.  Clelland  665 

Balls  V.  Met.  Board  &  Co.  353 

Baltimore  &  Ohio  Railw.  v.  Lara- 
born  487 
V.  Thomson      291,  347,  554 
V.  Wheeling  200 
Baltimore,  &c.  R.  v.  Northern,  &c. 

R.  663 

Baltimore  &  Susquehanna  Railw. 

V.  Nesbit        238,  284 
V.  Musselman  197 

V.  Woodruff   453,  649 
Banet ».  Alton  &  Sangamon  Railw. 

164,  172,  198 
Bangor   &  Piscataqua  Railw.  v. 

Harris  253 

Bangor  Bridge  Co.  v.  McMahon   162, 

165 
Bangor    House     Proprietary    v. 

Hincklev  162 

Bank  v.  McChord  126 

Bank  of  Augusta  v.  Earle  56 

of  Columbia  v.  Patterson  410 
of  Commonwealth  v.  Curry  126 
of  Manchester  v.  Allen  70 

of  Metropolis  v.  Guttschlick  410 
of  Middlebury  v.  Edgerton        4 
of  Pennsylvania  v.  Common- 
wealth 391 
of  South  Carolina  v.  Gibbs      69 
of  United    States    v.   Dan- 
dridge  70 
V.  Planters'  Bank     54,  59 
of  Utica  V.  Smalley                 116 
of  Walthara  v.  Waltham         112 
Barber  v.  Essex                                 638 
Barclay  v.  Howard's  Lessee             260 
Bardstown  &  Lou.  Railw.  v.  Met- 
calfe                                         64,  234 
Bargate  v.  Shortridge                       114 
Barker  v.  Midland  Railw,  94 
V.  North  Staffordshire 

Railw.  352 

V.  Troy  &  Rutland  Railw.   394, 

411,  438,  440 

Barlow,  in  re  656,  667 

Barnard  v.  Bagshaw  145 

V.  Wallis  3,  232 

Barned  v.  Hamilton  132 


TABLE  OF  CASES. 


liii 


Barnes  r.  Ward  606 

Barnesley  Canal  Co.  ».  Twibill       336 

Barrett,  ex  parte  ^        147 

r.  Great  Northern  Railw.     97 

r.  Maiden      &     Melrose 

Railw.  617 

c.  Stockton  &  D.  Railw.  236 
Barrington  v.  Miss.  Central  Railw.  110 
Barron  v.  Baltimore  230 

Barrows  v.  Mass.  Medical  So.         656 
Barry  r.  Croskey  5G8 

r.  Men-Hants'  Exchange  Co.  108 
Bartlett  v.  Baker  507 

Barton  v.  Port  Jackson,  «&c.  Plank- 
Road  Co.  562 
Barton's  Case  168 
Bass  V.  Chicago,  Bar.  &  Quincv 

Railw.  456,  477 

Bassett    0.    Norwich    &   Nashua 

Railw.  623 

Bateman  v.  Mid- Wales  Railw.         615 
Bates  r.  Boston  &  N.  Y.  Cen. 

Railw.  601 

V.  New  York  Ins.  Co.  115 

Bath  River  Navigation  Co,  r.  Wil- 
lis 238 
Batty  ».  Duxbury  638 
Batty e  v.  Gresley  84 
Bayley  r.  Wilkins  129 
Bayliffe  v.  Butterworth  129 
Bayntine  v.  Sharp  451 
Beach  r.  Smith  110,  190 
Beardmer  c.  London  &  North- 
western Railw.  887 
Beaty  o.  Knowler  236 
Beaufort  r.  Swansea  Harbor  Trus- 
tees 382 
Beaulicu  r.  Finglam  461 
Beckett  c.  Midland  Railw.  872,  339 
Beckitt  V.  Bilbrough  6 
Beckwith  r.  Svdebotham  654 
Bedford  Railw'.  r.  Bowser  179,  206 
Beebe  v.  Ayres  102 
Beekman  v.  Saratoga  &  Sch.  Railw.  228 
Beene  v.  Cahawba  &  M.  R.  164 
Beers  c.  Housatonic  Railw.  472 
Belfast   &  Angelica    Plank-Road 

Co.  V.  Chamberlain  68 

Bellv.  Francis  9 

r.  Gough  323 

r.  Hull  &  Selby  Railw.  329,  340 
r.  London  &  N.  W.  Railw.  657 
r.  Midland  Railw.  400 

Bellefontaine   &   Iowa  Railw.  r. 

Bailey  474 

Beman  r.  Rufford  75,  591 

Bend  c.  Susquehannah  Bridge  Co.    64, 

182 
Benedict  v.  Coit  805 


Bennett,  ex  parte  165 

Bennet  r.  Railw.  269,  278 

V.  C.  &  A.  Railw.  668 

r.  Dutton  102 

Benson,  ex  parte  646 

Bentinck  v.  Norfolk  Estuary  242,  389 
Benton  r.  Phil.,  W.  &  B.  Railw.  296 
Beverley  v.  Lincoln  Gas  Light  & 

Coke  Co.  410,  494,  698 

Bigelow  V.  Miss.  Central  &  Tenn, 

Railw.  279 

Bill  V.  Darenth  Valley  Railw.  600 

V.  Sierra  Nevada  L.  W.  Co.       61 
Binney  v.  Hammersmith  &  City 

Railw.  858 

Binney's  Case  111 

Birkenhead,  L.  &  Ch.  Railw.  r. 

Webster  179 

Birkenhead  Railw.  v.  Pilcher  191 

Birmingham  v.  Sheri<lan  132 

Birmingham,  B.  &  Th.  J.  Railw. 

V.  I^cke  6.  165,  182 

Birmingham  &  Oxford  J.  Railw.  r. 

Reg.  356 

Birmingham  Railw.  c.  Locke  156 

Bish  V.  Johnson  197 

Bishop  V.  North  2 

Bissell  p.  Mich.  So.  &  N.  Ind. 

Railw.  690 

Black  River  Railw.  v.  Clarke  67 

Black  River  &  Utica  Railw.   r. 

Barnard  66 

V.  Clarke  188 

Blackwell  r.  Wiswall  606 

Blair  v.  Corby  444 

Blake  r.  Ferris  604 

r.  Rich  260 

V.  Thirst  607 

Blakemore  v.   Bristol   &  Exeter 

Railw.  604 

r.  Glamorganshire  Ca- 
nal Co.        391.  634, 
635,  636,  638 
Bland  v.  Crowley  28,  37 

Bligh  V.  Brent  111 

Bliss  r.  Hosmer  241 

r.  Pass.  River  Railw.  833 

Blodgett  V.  Morrill  159,  160 

Blood  p.  Nashua  &  Lowell  Railw.   347 
Bloodgood  r.  M.  &  H.  Railw.        229, 
240.  269,  -281,  283,  310,  511 
Blount  V.  Hipkins  134,  151 

Bloxam,  ex  parte  1 4 

Bluck  V.  Mnllalue  682 

Blumenthal  v.  Brainerd  864 

Blundell  r.  Winsor  118 

Boardman  r.  Gore  126 

Bog  Lead  Co.  v.  Montague  122 

Bogg  r.  Midland  Railw.  846 


liv 


TABLE  OF  CASES. 


Bonaparte  v.  Camden  &  Amboy 

Railw.  63,  269,  281 

Bond  V.  Morse  568 

Bonner  r.  State  655 

Boody  r.  Rut.  &  Bur.  Railw.  440,  441 
Booker,  ex  parte  160 

Boothbv  F.  Androscoggin   &  K. 

Railw.  344 

Bordentown  &  South  A.  Turnpike 

V.  Camden  &  Amboy  Railw.         473 
Borough  of  Sewickley  661 

Bosanquet  v.  Shortridge  118 

Bostofk   V.    North    Staffordshire 

Railw.  249 

Boston  &  Lowell  Railw.  v.  Boston 

&  Maine  Railw.  613 

».  Proctor  101 

r.  Salem  &  Lowell  Railw.     257 

Boston  &  Maine  Railw.  v.  Babcock  224 

V.  Bartlett  204,  226 

V.  County  of  Middlesex        296 

V.  Lawrence  401 

Boston   &  Providence  Railw.  r. 

Midland  Railw.  282,  387,  390 

Boston  &  Worcester  Railw.  v.  Old 

Colony  &  F.  R.  Railw.  277 

Boston  Type  &  Stereotype  Foun- 
dry r.  Spooner  67 
Boston  Water  Power  Co.  v.  Boston 

&  Worcester  Railw.  265,  322 

Boswell  r.  Townsend  444 

Boughton  V.  Carter  831 

Boulton  r.  Crowther  804 

V.  Skelebley  153 

Bowen,  ex  parte  12 

Bowlby  F.  Bell  129 

Bowman  v.  Trov  &  Boston  Railw.  474 
r.  Wathen  328 

Boyd  r.  Chesapeake  &  Ohio  Canal 

Co.  557 

r.  Kegley  254 

Boynton  v.  Peterboro'  &  Shirley 

Railw.  281,  347 

Brace  r.  New  York  Central  Railw.  492 

Bracken  v.  Rushville  Gravel  Road  220 

Bradley  v.  Boston  &  Maine  Railw.  542 

r.  Holdsworth  111 

r.  London  &N.  W.  Railw.  381 

V.  N.  Y.  &  N.  H.  Railw.    55, 

229,  236,  295,  279,  305 

Bradshaw,  in  re  279 

p.  E.  &  W.  I.  Docks  & 

Birm.  J.  Railw.       362 

V.  Rogers  230 

Brainard  v.  Conn.  River  Railw.     225, 

229 
Brainerd  r.  Clapp  252 

Brand  v.   Hammersmith   &  City 
lUilw.  292,  339 


Branin  v.  Conn.  &  Pass.  Railw.      444 
Branson  v.  Philadelphia  222,  265 

Braynton  v.  London  &  Northwest- 
em  Railw.  388 
Breed  v.  Eastern  Railw.  363 
Breedlove  r.  M.  &c.  Railw.       68,  180 
Brewster  ».  Hough  259 
Bridges  v.  Wilts,  Somerset  &  Wey- 
mouth Railw.                                868 
Briggs,  ex  parte                                644 
V.  Ferrell                             689 
r.  Taylor                     602,  620 
Brigham  v.  Agricultural  Branch 

Railw.  892 

Bright  r.  Hutton  13 

Briglitwell  v.  Mallory  112 

Briscoe  v.  Bank  of  Commonwealth 

of  Kentuckj-  260 

British  Provident  Life  Ins.  Co., 

ea;  j9arie  Grady  617 

Broadbent  r.  Imperial  Gas  Co.        275 
Broadway  Bank  v.  McEIrath  155 

Brock  V.  Conn.  &  Pass.  Railw.       490 
Brockett  v.  Railw.  891 

Brooklyn  Central  &  J.  Railw.  v. 

Brooklyn  City  Railw.  304,  539 

Brooks  V.  Buffalo  &  Niagara  Falls 

Railw.  547 

V.  New  York  &  Erie  Railw.  465, 
498 
Broom  v.  Comm.  79 

Brotherhood,  in  re  617 

Broughton  v.  Manchester  Water- 
works 675 
Brown  v.  Beatty                       264,  335 
V.  Bellows  223 
V.  BjTme  130 
V.  Cayuga  &  Susquehannah 

Railw.  295,  331,  611 

t>.  Chadboume  322 

V.  Cincinnati  261 

V.  Duplessis  311 

V.  Illius  296 

V.  Maxwell  518,  528 

V.  Overbury  434 

V.  Peterson  254 

V.  Providence,  Hartford,  & 

Fishkill  Railw.      288,  502 
V.  Providence,  Warren,  &  ■ 
Bristol  Railw.       274,  287 
Brownlee  v.   Ohio,   Ind.,   &  111. 

Railw.  160,  174,  203 

Brownlow  v.  Metropolitan  Board    605 
Bryan  v.  Lewis  118 

Bryon  r.  Met.  Saloon  Omnibus  Co.  564 
Bryson  v.  Warwick  &  Birmingham 

Canal  Co.  6 

Buck  V.  Squiers  298 

Buckerridge  v.  Ingram  111 


TABLE  OP   CASES. 


Buckfield  Branch  Railw.  v.  Irish     165 
Bueknam  v.  Bucknam  299 

Buffalo  r.  HoUoway  638 

Buffalo    &    AUeglmny  Railw.  v. 

Carey  68 

Buffalo  &  New  York  City  Railw. 

V.  Dudley  165,  199,  207 

Buffalo,  Coming,  &  New  York 

Railw.  r.  Pottle  200 

Buffum  V.  New  York  °&  Boston 

Railw.  274 

Building    Association    v.    Sende- 

meyer  147 

Bull  r.  Chapman  15 

Buncombe  T.  Co.  r.  McCarson         67 
Burbridge  v.'  New  Albany  &  S. 

Railw.  847 

Burgess  v.  Gray  603,  505,  506 

V.  Great  Western  Railw.    604 
Burkinshaw   p.   Birm.   &  Ox.  J. 

Railw.  359,  370 

Burlington  &  Mo.  River  Railw.  v. 

White  201 

Burmester  v.  Norris  74 

Bumes  v.  Pennell  142,  656 

Burnet  r.  M.  Bisco  172 

Burnett  t.  Lynch  125,  138,  139 

Bums  V.  Dodge  284 

V.  Mill.  &  Miss.  Railw.  254,  336 

Buraside  v.  Steamboat  Co.  454 

Burr  V.  Wilcox  183 

Burrell  v,  Jones  568 

Burroughs  v.  Housatonic  Railw.     453 

Burt  V.  Farrer  64 

Burton,  ex  parte  13 

».  North  Missouri  Railw.     476 

r.  Phil.,  Wil.&  Bait.  Railw. 

295,  472,  513 

V.  Railw.  Co.  548 

r.  The  Railway  Co.  547 

Bash  r.  Bevan  623,  659 

r.  Steinman  504,  605 

Butler  V.  Hunter  607 

V.  Mehrling  276 

V.  Pennsylvania  260 

Butman  v.  Veraiont  Central  Railw.  290 

Button  r.  American  Tract  Society    60 

Butts  V.  Woods  670 

Buxton  r.  N.  E.  Railw.  476 


C.  C.  &  C.  Railw.  V.  Elliott    467,  488 
V.  Keary  521,  529 

C.  H.  &  D.  Railw.  r.  Waterson  467 
C.  H.  &  N.  W.  Railw.  v.  Goss  504 
C.  P.  &  A.  Railw.  r.  City  of  Erie  67 
C.  P.  &  lud.  Railw.  o.  Smipson      273 


Cabot  and  West  Springfield  Bridge 

Co.  r.  Chapin  176 

Cahill  V.  Kalamazoo  Ins.  Co.  84 

Calder  Navigation  Co.  v.  Pilling  88, 

92 
Caledonian  Railw.  v.  Lockhart        382 
r.  Ogilvy  340 

V.  Sprot  296 

Caledonian     &     Dumbartonshire 
Junction    Railway    c.    Helens- 
burgh Harbor  Trustees  46 
Callender  v.  Marsh                           304 
V.   Painesville   &  H. 

Railw.  62 

Cambridge  &  Somerville  v.  Charles- 
town  Br.  Railw.  644 
Cam.  &  Amboy  Railw.  v.  Briggs  236, 

447 
Camden  v.  Mulford  661 

Camden  Bank  v.  Halls  126 

Cameron  v.  Charing  Cross  Railw.   344 
Campbell  v.  Mesier  485 

Canal  Commissioners  v.  People       298 
Canal  Co.  v.  Archer  262 

Canandaigua  &  N,  Railw.  v.  Payne  261, 

293 
Cape  Sable  Company's  Case  111 

Capper  r.  Earl  of  Lindsey  40 

Carden  r.  Gen.  Cemetery  Co.         652 
Cardiff  C.  &  C.  Company,  in  re 

Norton  144 

Carie  V.  B.  &  P.  Canal  &  R.  R. 

Co.  52,  519,  628 

Carlisle  ».   Cahawba    &    Marion 

Railw.  172 

Carman   v.   Steubenville   &  Ind. 

Railw.  287,  505 

Cannichael,  ex  par<«  12 

Carnochan  v.  Norwich  &  Spalding 

Railw.  348,  358 

Carpenter  v.  County  Commission- 
ers of  Bristol    271,643,644 
V.  Ins.  Co.  133 

Carr  v.  Georgia  Railw.  &  Banking 

Co.  236,  253,  334 

r.  Royal  Exchange  Ins.  Co.     127 

Carrington  r.  Wycomb  Railw.     356, 

378 
Carroll  v.  New  York  &  New  Haven 

Railw.  635 

Carson  p.  Western  Railw.  294 

Carter  v.  Great  Eastern  Railw.        368 
Case  V.  Thompson  281 

Catchpole  v.  Ambergate  Railw.        145 
Caterham  Railw.  v.  London  &  Br. 

Railw.  96 

Cayzer  r.  Taylor  520 

Central  Bridge  Corporation  v.  City 
of  Lowell  265 


Ivi 


TABLE  OP  CASES. 


Central  ^Military  Track  Railw.  r. 

Rockafellow  484,  498 

Central   Ohio   Railway  v.   Law- 
rence 475 
Central  Plank-Road  Co.  v.  Clem- 
ens 199 
Central  Railw.  Co.  r.  Bunn             197 
r.  Hitfield          221 
Central  Railw.  r.  Kisch                     212 
Central  Turnpike  Co.  v.  Valentine  109 
Centre  Turnpike  Co.  r.  Smith         445 
Chadsey  v.  MeCreery  62 
Chamberlain  r.  East  End  of  Lon- 
don &  Crystal  Palace  Railw.        342 
V.  Painsville  &  Hud- 
son Railw.     81,  173 
V.  West  End  of  Lon- 
don &  C.  Railw.  339 
Chambers  r.  London,  Chatham  & 

Dover  Railw.  854 

r.  Manchester  &  Mil- 
ford  Railw.  615 
Champion  v.  Memphis  &  Charles- 
ton Railw.                              199,  392 
Champlain  &  St.  Lawrence  Railw. 

r.  Valentine  323 

Champlin  v.  Pendleton  298 

Chandler  r.  Broughton  513 

Chapin   r.   Boston  &  Providence 

Railw.  273 

r.  Sullivan  Railw.        247,  493 
V.  Venn.  &  Mass.  Railw.     126 
Chapman  v.  Albany  &  Sch.  Railw. 

294,  298,  301,  305 
V.  Atlantic  &  St.  Law- 
rence Railw.  455 
V.  Mad  River  &  Lake 

Erie  Railw.  177 

Chappie's  Case  157,  192 

Charitable  Corporation  v.  Sutton     577 
Charles  River  Bridge  v.  Warren 

Bridge  70,  236,  257,  260 

Charles  River  Railway  v.  County 

Commissioners  of  Norfolk  350 

Charlestown  Branch  Railw.  v.  Mid- 
dlesex 281 
Charlotte  &  S.  C.  Railw.  r.  Blake- 

ly  164,  187 

Chase  r.  New  York  Central  Railw. 

289,  448 
Chasemore  ».  Richards  332 

Chatham  v.  Brainerd  298 

Cheale  v.  Kenward  133 

Cheltenham  &  Great  Western  Un- 
ion Railw.  V.  Daniel  124,  182 
r.  Medina  182 
Cheney  v.  Boston  &  Maine  Railw.     99 
Chesapeake  &  Ohio  Canal  Co.  v. 
Baltimore  &  Ohio  Railw.             256 


Chester    Glass    Co.    ».    Dewey    116, 

162 
Chestnut    Hill   Turnpike  Co.   p. 

Rutter  511 

Chicago,   Burlington,    &   Quincy 
Railw.  V.  Cauffman  478 

V.  Coleman  573 

r.  Parks  91,  104,  105 

V.  Wilson  244,  643 

Chicago  &  Miss.  Railw.  r.  Patch- 
in,  252,  472,  480,  488 
Chicago  &  Mont.  Railw.  r.  Bull      277 
Chicago  &  Rock  Island  Railw.  r. 
Still  547 
».  Ward   483 
Child  V.  Coffin  116 
V.  Hudson  Bay  Co.            88,  89 
Childs  r.    Somerset  &  Kennebec 

Railw.  411,  440 

Chilton   V.   London    &    Croydon 

Railw.  90,  98 

Chinnock,  ex  parte  157 

Chouteau  Sprmg  Co.  v.  Harris        115 
Church  V.  Imperial  Gas  Light  Co.  595, 

598 
c.  Northern  Central  Railw. 

271 
Cincinnati  Coll.  p.  State  236 

Cincinnati  &  Spring  Grove  Ave. 

Railw.  V.  Cumminsville  310 

Cincinnati,    Indiana    &    Chicago 

Railw.  V.  Clarkson  207 

Cincinnati,  W.    &  Z.    Railw.   v. 

Clinton  Co.  Commissioners  229 

Cin.  &  Ohio  &  Miss.  v.  Ind.   & 

Cin.  Railw.  588 

City  of  Cincinnati  v.  Stone  504 

of  London  ».  Vanacre  79 

of   Roxbury   ».    Boston    & 

Providence  Railw.  226 

Claflin  V.  Wilcox  512 

Clarence  Railw.  v.  Great  North 

of  England  Railw.  218,  235 

Clark  V.  Boston  Cone,  &  Mont. 

Railw.  333 

r.  Dickson  141 

V.   Guardians  of  Cuckfield 

Union    596,  598,  599,  601 
V.  Mayor  of  Syracuse  229 

c.  Monongahela  Nav.  Co.      187 
p.  Syracuse  &  Utica  Railw.  467, 
468,  487,  498 
V.  Vermont  &  Canada  Railw. 

262,  489 

Clark's  Case  89 

Clarke,  ex  parte  12 

p.  Dickson  141,  142 

p.  Imperial  Gas  Light  Co.  570, 

676 


TABLE   OP  CASES. 


Ivii 


Clarke,  v.  Leicestershire  &  North- 
ainptonsbire  Canal  Co. 

648 
V.  M.,  Sh.  &  L.  Railw.  268 
V.  N.  &  L.  Union  Canal  643 
V.  Rochester,  L.  &  N.  F. 

Railw.  488 

Clarkson  r.  Hudson  River  Railw.    279 
Clary  v.  Hoagland  662,  663 

Clay  V.  Rufford  657 

Clayton  v.  Carey  655 

Cleaver  v.  Commonwealth  666 

Clement  r.  Can6eld  488,  589 

Cleve.  &  Pittsb.  RaUw.  v.  Ball,     274, 

276 
V.  Kelley    440 
Cleveland  &   Toledo    Railw.    r. 

Prentice  272 

Cleveland  Iron  Co.  v.   Stephen- 
son 565 
Cleveland,  Painesville,  &  Ashta- 
bula Railw.  r.  City  of  Erie         621 
Cleveland    &    C.  Railw.  r.  Bar- 
tram  101 
Clipper  V.  Logan                               654 
Clive  p.  Clive  151 
Coates  V.  Mayor  of  New  York        229 
Cobb  r.  Mid  Wales  Railw.              855 
V.  Roberts                                657 
Cockbum,  ex  parte  115 
V.  Union  Bank                  644 
Cockerell  v.  Van  Dieman^s  Land 

Co.  214 

Coe  p.  Wise  605 

Coffin  p.  Collins  70,  84 

Coggs  p.  Bernard  577 

Coil  p.  Pittsburg  Female  College      69 
Colcock  p.  Louisville  Railw.  413 

Colcough  r.  Nashville  &  N.  W. 

Railw.  272,  295,  335 

Cole  p.  Crystal  Palace  Railw.  854 

p.  Dyre  669 

Coleman,  ex  parte  147 

College  of  Pnysicians  p.  Salmon       59 
Collins  V.  Blantem  573 

V.    South    Staffordshire 

Railw.  881 

Collinson  r.  Newcastle  &  Darling- 
ton Railw.  846 
Colman  p.  Eastern  Counties  Railw.  81, 
195,  196,  234,  559,  611 
Colonial  Life  Ass.  Co.  p.  Home  & 

Col.  Life  Ass.  Co.  61 

Columbia  Ins.  Co.  p.  Lawrence       455 

p.  Wheelwright  660 

Columbine  p.  Chichester  185 

Columbus    &    Shelby    Railw.    p. 

Watson  490 

Columbus,  P.  &  I.  Railw.  c.  Simpson  262 


Columbus,  P.  &  I.  Railw.  p.  Ind. 

&  Belief.  Railw.  691,  622 

Colvin  p.  Tunipike  Co.  197 

Commonwealth  p.  Alger  325 

p.  Arrison  655,  668 

p.  Boston  *&  Maine  Railw. 

277,  327,  863 
p.  Canal  Commissioners  84 
V.   Central   Passenger 

Railw.  817 

c.  Clarkson  417 

r.  Commissioners  626 

V.  Commissioners  of  Al- 
leghany 659 
p.  Com.  Bank  666 
p.  CuUen  197 
c.  Del.   &  Hud.   Canal 

Co.  667 

p.  Erie  &  Northeastern 

Railw.        236,  307,  892 
p.  Farmers'  Bank  669 

p.  Fisher  283,  304 

p.  Fitchburg  Railw.  387,  392 
p.  Guardians  of  the  Poor 

of  Phil.  626 

p.  German  Soc.  656 

p.  Hartford  &  New  Haven 

Railw.  400 

p.  Haverhill  401 

r.  Mayor  of  Lancaster  170 
p.  Morris  69 

p.  Penn.  Benevolent  Inst.  656 
p.  Perkins  642 

p.  Philanthropic  Soc.  656 
p.  Pittsburgh  623,  624,  642 
p.  Power  94,  95,  98 

p.  Richer  231 

p.  Roxbury  326 

p.  Smith  668 

p.  St.  Pat.  Benevolent  656 
p.  Tewksbury  229 

V.  Trustees  of  St.  Mary's 

Church  80 

p.  Union  Fire  &  Marine 

Ins.  Co.  656,  668 

p.  West  Chester  Railw.       66 

Compton  p.  Susquehannah  Railw.  238, 

283 
Conn.  &  Pass.   Rivers  Railw.  p. 

Bailev  159,  164,  198,  204 

Conn.  &  Pass.  Railw.  p.  Baxter     178, 

174 
Connecticut  &  Pass.  Railw.  p.  Hol- 

ton  247 

Connecticut  River  Railw.  p.  Clapp  267 
Concord  Railw.  p.  Greely     2G2,  274, 

275, 338 
Congor  r.  Galena,  &c.  U.  Railw.  502 
Connop  p.  Levy  13 


Iviii 


TABLE   OF   GASES. 


Conro  V.  Port  Henry  Iron  Co.  80 

Conservators  of  the  Tone  v.  Ash  56 
Contoocook  Valley  Railw.  r.  Barker  177 
Conybeare  v.  New  B.  &  Canada 

Railw.  &  Land  Co.  142,  564 

Cook  V.  Parham  523 

Cooke  v.  Oxley  172,  203,  204 

Cooley  V.  Brainerd  •  364 

Cooling,  in  re  342 

V.  Great  Northern  Railw.  342, 
446 
Coon  V.  Sy.  &  Utica  Railw.    518,  520, 

528,  529 
Coop  V.  Champ.  Trans.  Co.  453 

Coope  V.  Glyn  651 

Cope  V.  Thames  Haven  Dock  & 

Railw.  596 

Copeland  v.  Northeastern  Railw.  123 
Coppin  V.  Braithwaite  103 

Corby  v.  Hill  219 

Corey  v.  Buffalo,  Coming,  &  N. 

y.  Railw.  308 

Cork  &  B.  Railw.  v.  Goode  192 

Cork  &  Brandon  Railw.  v.  Caze- 

nove  191 

Cork  &  Youghal  Railw.  v.  Patter- 
son 193 
Cornwall  v.  Sullivan  Railw.  497 
Cornwall  G.  C.  M.  Co.  v.  Ben- 
nett 167 
Corregal  v.  Lon.  &  Bl.  R.  644,  651 
Cort  V.  Ambergate,  Not.,  B.  &  E. 

J.  Railw.  412 

Corwin    v.    New   York  &    Erie 

Railw.  471 

Coster  V.  New  Jersey  Railw.  251,  279 
Costigan  ».  Mohawk   &  Hudson 

Railw.  584 

Cotheal  v.  Brouer  214 

Cotber  V.  Midland  Railw.  389 

Cott  V.  Lewiston  Railw.  332 

Couch  V.  Steel  :  524 

Cowell  V.  Buckelew  660 

Cox  V.  Burbridge  459 

Coy  r.  Utica  &  Sch.  Railw.  473 

Cozens  V.  Bognor  Railw.  239,  366 

Craig  V.   Rochester  City  &  Br. 

Railw.  '  809 

Cram  v.  Bangor  House  84 

Crawford  v.  Chester  &  Holyhead 

Railw.  889 

V.  Delawne  310 

Crawfordsville  Railw.  v.  Wright     513 

Creed  v.  Lancaster  Bank  110 

Crittenden  v.  Wilson  334 

Crocker  v.  Crane  66,  190,  278 

».   New  London,   Willi- 

mantic  &  Palmer  Railw. 

104, 612 


Croft  ».  Allison  608 

».  London  &  N.  W.  Railw.     344 
Cromford   &    High  Peak  Railw. 

V.  Lacey  182,  187 

V.   Stockport,    D.    &    W. 

Bridge  Railw.  25 

Cromford  Canal  Co.  v.  Cutts  342 

Crosby  v.  Hanover  246,  255,  260 

Croskey  v.  Bank  of  Wales  15 

Cross  V.  Mill  Co.  165 

Crosse  ».  Smith  662 

Crouch  V.  London  &  N.  W.  Railw.  446 
Cruger  v.  Hudson  River  Railw.  279 
Cullen  V.  Thompson  564 

Cumberland  Coal  Co.  v.  Sherman  517 
Cumberland  Valley  Railw.  c.  Baab   32, 

172 
V.  Hughes      605 
Cumming  v.  Prescott  85,  151 

Cunliff  V.   Manchester  &  Bolton 

Canal  Co.  74,  194 

Cunningham  v.  E.  &  K.  Railw.        174 

V.  Rome  Railw.  345 

Curran  ».  State  of  Arkansas  169 

Currier  v.  Boston  &  M.  Railw.        276 

V.  Lowell  538 

V.  Marietta  &  Cin.  Railw.  233 

Curtis  V.  Eastern  Railw.  333 

V.  Leavitt  573 

V.  Vermont  Central  Railw. 

271,483 
Cushman  v.  Smith  240,  264,  280 

Cutbill  r.  Kingdom  77 

Cutler  V.  ^Middlesex  Factory  Co.     162 


D. 


Dadson  v.  East  Kent  Railw.  853 

Dalton  r.  Midland  Railw.  146 

Daly  V.  Thompson  7 

Dana  v.  Bank  of  United  States  80 

Danbury  &  N.  Railw.  v.  Wilson    163, 
165,  191,  196,  198,  203 
Dance  v.  Girdler  11,  22 

Dand  v.  Kingscote  2 

Danforth  v.  Smith  376 

Danner  v.  South  Carolina  Railw.  470 
Danville,  &c.  Co.  v.  State  666,  670 
Danville  Bridge  Co.  v.  Pomeroy  439 
D'Arcy  v.  Tamar,  K.  &  C.  Railw.  85 
Darling  v.  Neill  662 

Darnley  v.    London,  Chatham  & 

Dover  Railw.  268,  490 

Dart  V.  Houston  646 

Dartmouth  College  v.  Woodward    52, 

53,  56,  70,  256 

Dartmouth  &  Tobay  Railw.  in  re     48 


TABLE  OF  CASES. 


lix 


Dascomb  v.  Buffalo  &  State  Line 

Railw.  542.  544 

Dater  v.  Troy  T.  &  Railw.  608 

Daucby  r.  Brown  115 

Davidson    v.    Boston    &    Maine 

Railw.    231,  271,  281,  282,  327,  381 

r.  Sevinour  576 

r.  Tu'Uoch  142,  567 

Davis  V.   Charles    River   Branch 

Railw.  270,  271 

V.  Combermere  40 

V.  E.  T.  &  Ga.  Railw.  239 

r.  La  Crosse  &  Milwaukee 

Railw.  336 

r.  Lamoille  County  Plank- 
Road  605 
V.  Leominster                        638 
V.  London  &  Blackwall 

liailw.  336 

e.  Meeting  H.  in  Lowell        88 

F.  Russell  284 

Day  c.  Day  152 

r.  Newark  India  Rubber  Co.     57 

r.  Owen  88,  93 

Dajton  V.  Borst  163,  169,  170 

Dean  r.  Sullivan  Railw.  248,  250,  335, 

487 
Dean  and  Canons  of  the  English 

Catliedrals  60 

Dearborn  v.  Boston,  C.  &  Mon- 
treal Railw.  53,  262.  286 
Degg  p.  Midland  Railw.  518,  528 
De  Grave  v.  Mayor  of  Monmouth  600 
Del.  &  Atlantic  Railw.  r.  Irick     197, 

203 
Delaware  Canal  Co.  r.  Sansom  164 
Denny  v.  North  W.  Christian  Uni- 

versitv  163 

V.  Trapnell  664 

Denton  r.  Livin^ton  112 

V.  Macniel  10 

De  Pass's  Case  157 

Deposit  &  G.  Life  Ass.  Co.  r. 

Ayscough  191 

Derby  r.  Phil.  &  Read.  Railw.  508 
Devlin  r.  Second  Avenue  Railw.  426 
Devoe  r.  Penrose  Ferry  Bridge 

Co.  824 

De  Varaigne  v.  Fox  251 

De  Wint  v.  Wiltse  483 

Dewers  c.  Pike  567 

Dickinson  t.  Valpy  9 

Diggle  r.  London  &  Blackwall 

Railw.  410,  596,  599,  601 

Dillingham  v.  Snow  56 

Dimes  v.  Grand  Junction  Co.  420 

Direct  Shrewsburj'  and  Leicester 

Railw.  in  re  165 

Directors,  &c.  r.  Railw.  270,  272 


Dixon  r.  Ranken  522 

Doane  r.  Scannell  668 

Dobson,  ex  parte  126 

Dodd  V.  Salisbury  &  Y.  Railw.     244, 

389 
Dodge  r.  Bums  254 

r.  County  Commissioners  286, 
287,  288 
Doe  d.  Armistead  c.  North  Staf- 
fordshire Railw.  357,  369,  388 
Doe  V.  Bcebe  231 
r.  Bristol  &  Exeter  Railw.        388 
r.  Greorgia  Railw.  &  Banking 

Co.  284 

r.  Leeds  &  Bradford  Railw.     365 
V.  Manchester,  Bury,  &  Rosen- 
dale  Railw.  364 
Domestic  <&  Foreign  Missionary 

Society's  Apnea!  60 

Donaldson  v.  i  uUer  585 

Donnahcr  v.  State  of  Mississippi     53, 

229 
Donnigon  v.  Ch.  &  N.  W.  Railw.  488 
Doo  V.  London  &  Croydon  Railw.  24, 

359 
Dorian  r.  E.  Br.  &  W.  Railw.     263, 

274 
Doubleday  v.  Muskett  9 

Doughty  V.  Somerville  &  Easton 

Railw.  238, 269 

Dovaston  v.  Payne  250,  299,  497 

Dover  &  Deal  Railw.,   ex  parte 

Mowatt  12 

Dover  Harbor  r.  L.  C.  &  Dover 

Railw.  268 

Downer  v.  Bank  116 

Downie  c.  White  159 

Downing  r.   Mount  Washington 

Road  Co.  615 

Downton,  ear  parte  646 

Drake  r.  Hudson  River  Railw.       282, 

298,  305 

Draper  r.  Gordon  136 

c.  Noteware  623,  659 

r.  Williams  219 

Drew  V.  New  River  Co.  536 

V.  Sixth  Avenue  Railw.  516 

Druid,  Case  of  the  514 

Drummond,  ex  parte  157 

Drybutter  v.  Bartholomew  111 

Dublin  &  W.  Railw.  v.  Black  I'Jl 

DuBois  r.    Delaware   &  Hudson 

Canal  Co.  415,  417 

Dudden  v.  Union  296 

Duke  ».  Cahawba  Nav.  Co.  67 

Duke  of  Norfolk  r.  Tennant  371 

Dun  r.  Charleston  334 

Duncan  v.  Cliamberlayne  151 

r.  Hodges  126 


TABLE  OF  CASES. 


Duncan  v.  Luntley  114 

V.  Railroad  Co.  521 

Duncuft  V.  Albrecht        111,  132,  133. 

134 
Dundalk  W.  R.  r.  Tapster  644 

Dunham  r.  Trustees  of  Rochester  232 
V.  Troy  Union  Railw.        557 
Dunn  r.  City  of  Charlestown  218 

r.  North  Missouri  Railw.  443 
Dunston  v.  Imperial  Gas  Co.  410,  570 
Durfee   r.    Old    Colony    &    Fall 

River  Railw.  615 

Durgin  r.  Munson  530 

Durham     &     Sunderland    R.    v. 

Walker  2,  8 

Durkee  v.  Vermont  Central  Railw.  132 
Dutchess    Cotton    Manufacturing 

Co.  V.  Davis  163 

Duvergier  r.  Fellows  113 

Duxbury    r.     Vermont    Central 

Railw.  639 

Dyer  v.  Jones  412 

V.  Walker  &  Howard  69 

D^nien  v.  Leach  519 


E. 


E.  &  W.  I.  Docks  &  B.  J.  Railw. 
V.  Gattke      295,  334.  338,  371,  651 

Eagle  r.  Charing  Cross  Railw.         339 

Eakin  v.  Raub  281 

Eakright  ».  L.  &  N.  I.  Railw.  67,  174 

Eales  V.  Cumberland  Black  Lead 
Co.  14 

Eames  r.   Boston   &   Worcester 
Railw.  496 

Earl  of  Lindsay  r.  Great  Northern 
Railw.  42 

Earl  of  Shrewsbury  v.  North  Staf- 
fordshire Railw.  683 

Earle  v.  Hall  505 

East  Anglian  Railw.  v.  Eastern 
Counties  Railw.   27,  32,  42,  196,  614 

East  Lancashire  Railw.  r.  Hatters- 
ley  432 
r.  L.  &  Yorksh.  Railw.  591 

East  London  Water  Works  Co.  r. 
Bailey  21 

East   Pascagoula    Hotel    Co.    r. 
West  67,  110 

East  Penn.  Railw.  v.  Hiester  274 

r.  Hottenstine    274 

East  Tennessee  &  Ga.  Railw.  v. 
St.  John  548 

East  Wh.  M.  M.  Co.,  in  re    147,  646, 

655 

Eastern  Counties  Railw.  ex  parte     366 
V.  Broom  102 


Eastham  v.  Blackburn  Railw.  279 

Easton  p.  Little  Miami  Railw.         501 
Eastwood  V.  Bain  664 

Edgerly  v.  Emerson  84 

Edinboro'   &  Dundee  Railw.  r. 

Leven  359 

Edinburgh  &  G.  Railw.  v.  Stirling 

&  D.  Railw.  611 

Edinburgh,  L.  &  N.  H.  Railw.  v. 

Hibblewhite  165,  213 

Edinburgh,     Perth,     &     Dundee 

Railw.  V.  Philip  37,  47 

Edmondson,  in  re  663 

Edwards  r.  Grand  Junction  Railw.  16, 

17,  19,  34,  46 

V.  Great  Western  Railw.  446 

V.  Lowndes  651 

V.  Union  Bank  of  Florida 

509 
Egbert  v.  Brooks  136 

Elder  v.  Bemis  605 

Elderton  v.  Emmens  685 

Electric  Tel.  Co.,  in  re  157 

V.  Bunn  157 

EUicottville  Plank-Road  v.  Buffalo, 

&c.  Railw.  299 

Elliott,  in  re  381 

r.  Fairhaven  &  Westville 

Railw.  312 

V.  Northeastern  Railw.        342 

V.  South  Devon  Railw.        356 

Ellis  r.  Coleman  616 

V.  Essex  Bridge  Co.  116 

V.  London   &    Southwestern 

Railw.  466 

V.  Marshall  70,  195 

V.  Sheffield  Gas  Consumers' 

Co.  504,  505 

V.  Swanzey  298 

Ellison  r.  Mobile  &  Ohio  Railw.      174 
Elsworth  V.  Cole  119 

Elwood  V.  Bullock  88 

Elysville  v.  O'Kisco  164 

Embury  v.  Conner  218,  229 

Emmerson's  Case  145 

Enfield  Toll  Bridge  r.  Hartford  & 

N.  H.  Railw.         236,  255,  257,  258 
Enthoven  v.  Hoyle  125 

Eppes  V.  U.  G.  &  T.  Railw.  208 

Erie   &  Northeastern   Railw.    v. 

Casey  262 

Ernest  v.  Croysdell  617 

p.  Nichols  657 

Ernett  v.  Hudson  River  Railw.       646 
Ernst  r.  Hudson  River  Railw.  545 

Essex  Bridge  Co.  r.  Tuttle  164 

Etty  r.  Bridges  151 

Eustis  r.  Parker  63 

Evaus  V.  Haefner  247,  284 


TABLE   OF  CASES. 


Ixi 


Evans  V.  Heart  of  Oak  Benefit  So- 
ciety 637 
Evansville  &  C.  Railw.  c.  Cochran  263, 

482 
r.  Fitzpatrick  263,  482 
Vi  Stringer  482 

Evansville  &  Crawfordsville  Railw. 

r.  Dick  283,  2ol,  309 

Everhart  p.  West  Chester  &  Phila- 
delphia Railw.  184,  187,  199 
Eversiieldr.MidsussexRailw.  244,  389 
Eward  v.  Lawrenceburg  &  Upper 
Miss.  Railw.  514 


F.  Street,  Matter  of  262 

Falconer  v.  Campbell  70 

Faley  p.  Hill  422 

Fall   River    Iron  Works  e.   Old 

Colony  &  F.  R.  Railw.        323,  394, 

671 
Falls  r.  Belfast  &  B.  Railw.  355 

Farlow,  ex  parte  345 

Fanners'  Bank  of  Maryland  v. 

Iglehart  116 

Famum  v.  Blackstone  Canal  Co.      57 
Farrow  p.  Vansittart  2 

Farwell  t.  Boston   &  Worcester 

Railw.  518,  522,  527,  528,  5l^9,  532 
Faulkner  v.  i^rie  Railw.  519 

c.  Hebard  198 

Faunce  r.  Burke  408 

Faviell  p.  Eastern  Counties  Railw.  349 
Fawcett  r.    York    &    North   M. 

Railw.  469 

r.  Whitehouse  577 

Feamley  p.  Morley  445 

Feamside  &  Dean's  Case  140 

Feathcrstonhaugh  p.  Porcelain  Co.  566 
Feldcr  p.  liailw.  Co.  512 

Feltham  v.  England  521 

Felts  p.  Memphis  656 

Fenton  r.  Trent  &  Mersey  Nav, 

Co.  342,  651 

Fenwick  ».  Bell  554 

Feoffees  of  Heriot's  Hospital  r. 

Gibson  385 

Ferguson   v.   Brighton    &   S.   C. 

Railw.  354 

Ferris  p.  Van  Buskirk  489 

Fewings  p.  Tisdal  586 

Ffooks  p.  London  &  S.  W.  Railw.     75 
Field  p.  Field  84 

p.  I^lean  121 

r.  Newport,  Ab.  &  Hereford 

Railw.  445 

V.  New  York  Central  Railw.  453 


Field  p.  Vermont  &  Mass.  Railw.  276 
Filder  p.    L.    Brighton    &  South 

Coast  Railw.  515,  884 

Finlay  r.  Bristol  &  Exeter  Railw.  596 
Finney  p.  Glasgow  &  S.  W.  Railw.  447 
Fir^t  Parish  in  Sutton  p.  Cole  60 

Fiser  p.  Miss.  &  Tenn.  Railw.  110 
Fish  p.  Dodge  505 

Fiaher  p.  Essex  Bank  155 

c.  Evansville  &  Crawfords- 
ville Railw.  201 
p.  Price                                    121 
Fishmongers'  Co.  p.  Robertson        595 
Fitch  p.  N.  H.  M.  L.  &  Stoning- 

ton  Railw.  593 

Fitchburg    Railw.    r.    Boston   & 
Maine  Railw.        220,  270,  272,  327 
V.  Charlestown  M.  Fire 

Ins.  Co.  454 

V.  Grand  Junction  Railw. 

&  Depot  Co.  405 

Fitzpatrick  p.  New  Albany  &  Sa- 
lem Railw.  624 
Flagg  p.  Lowber  579 
Flaniank,  ex  parte  218 
Fleming,  ex  parte  626 
Fletcher  p.  Auburn  &  Syracuse 

Railw.       283,  297,  301 

r.  Boston  &  Maine  Railw.  590 

V.  Great  Western  Railw.  296 

r.  Rylands  457 

Flower  r.  London,  Br.  &  S.  Coast 

Railw.  235 

Fooks  p.  Wilts,  Somerset,  &  Wey- 
mouth Railw.  364 
Foote  V.  City  of  Cincinnati  103 
Ford  p.  Ch.  &  N.  W.  Railw.  283,  311 
Forrest  p.  Manchester,  S.   &  L. 

Railw.  558 

Forster    p.    Cumberland    Valley 

Railw.  350 

Fort  Edward,  &c.  Plank-Road  Co. 

p.  Payne  170 

Forward  p.  Hampshire  &  Hampden 

Canal  Co.  256 

Fosberry  o.  Waterford  &  Limerick 

Railw.  404 

Foster  v.  Bank  of  England  216 

p.  Essex  Bank       195,  508,  513 

».  Oxford  W.  &  W.  R.  85 

V.  Walter  60 

Fotherly  p.  Met.  Railw.  644 

Fowler  p.  Kennebec  &  Portland 

Railw.  408 

Fox  p.  Northern  Liberties  509 

r.  Sute  of  Ohio  230 

Franklin  Ben.  Asso.  v.  Common- 
wealth 656 
Franklin  Bridge  Co.  p.  Wood  8 


Ixii 


TABLE   OF   CASES. 


Franklin  Glass  Co.  v.  Alexander     162 
V.  White  162 

Franklyn  v.  Lamond  126 

Fraser  t'.  Whalley  665 

Frazier  ».  Pennsylvania  Railw.      619, 

628 
Frederick  v.  Clarke  661 

Freedle  v.  North  Carolina  Railw.    273 
Freeman  v.  Winchester  164 

Fremont  v.  Crippen  623 

Fry's    Ex'r   ».    Lex.    &  Big.    S. 

Railw.  109,  165,  198,  199,  392 

Fuller  r.  Dame  577 

r.  Trus.  of  Academic  School 

in  Plainfield  656 

Fumiss  V.  Hudson  River  Railw.     288, 

835 
Fyler  v.  Fyler  150 


G. 

Gage  r.  Newmarket  Railw.        29,  32, 

35,36 
Gahagan  v.  Boston  &  Lowell 

Railw.  551,  553 

Galena  &  Chicago  Railw.  r.  Grif- 
fin 479,  494 
V.  Jacobs     549 
V.  Loomis     547 
V.  Yarwood  553 
Galloway  v.  Mayor  &  Commonalty 
of  London  &  Metropolitan  Railw.  237 
Galvanized  Iron  Co.  v.  Westoby       13 
Gandell  v.  Pontigny  585 
Ganettr.  Salisbury  &  Dorset  Junc- 
tion Railw.                            408,  433 
Gano  V.  State                            666,  667 
Gardiner  v.  Boston  &  Worcester 

Railw.  306 

r.  Smith  489,  492 

Gardner  v.  Charing-Cross  Railw.     358 

V.  Newburgh    228,  281,  282. 

331 

Garrett  &  Salisbury  v.  Dorset  J. 

Railw.  408,  433 

Garrick  v.  Taylor  122 

Garris  v.  Portsmouth  &  Roanoke 

Railw.  467 

Garrison  v.  Memphis  Ins.  Co.  454 

Gaskell  r.  Chambers  570 

Gawthern  v.  Stockport,  Desley,  & 

W.  Railw.  321 

Gayle  v.  Cahawba  R.  164 

Gebhart  v.  Junction  Railw.  162 

Gerhard  v.  Bates  144 

Getty  V.  Huilson  River  Railw.         824 
Gibbons  r.  Ogden  326 


Gibbs  V.   Trustees   of  Liverpool 

Docks  605 

Gibson  v.  East  India  Co.  410 

Giesy  V.  Cincinnati,  Wil.  &  Zanesv. 

Railw.  250,  263 

Gifford  V.  New  Jersey  Railw.  196 

Gilbert  v.  Cooper  6 

».  Havermeyer  847 

Giles  V.  Hutt  166 

V.  Taff  Vale  Railw.  512 

Gillet  V.  Moody  170 

Gillett  r.  Western  Railw.  400 

Gillinwaterr.  Mad.  &  Ind.  Railw.  524, 

534 

V.  Miss.  &  A.  Railw.  238 

Gilman  v.  Eastern  Railw.  530 

V.  Hall  412 

Gilpin  V.  Howell  112 

Gilshannon  v.  Stony  Brook  Railw.  520, 

629,  534 
Gittings  V.  Mayhew  11 

Glamorganshire   Canal  Co.   v. 

Blakemore  391 

Glass  Co.  V.  Dewey  162 

Gleason  v.  Briggs  542 

Glover  V.  London  &  Northwestern 

Railw.  612 

V.   North   Staffordshire 

Railw.         233,  293,  371 
V.  Powell  327 

Goddard  v.  Hodges  13 

r.  Pratt  10 

GofF  V.  Great  Northern  Railw.  515 
Gold  V.  Vermont  Central  Railw.  277 
Gold  Mining  Co.  ex  parte  584 

Gooday  v.   Colchester  &   Stour 

Valley  Railw.  16,  30,  43 

Goodman  v.  Pocock  584 

Goodrich  ».  Eastern  Railw.  330 

V.  Reynolds  183 

Goodtitle  v.  Kibbe  280 

Goodwin  v.  Glazier  659 

r.  Union  Screw  Co.  572 

Gorman  r.  Board  of  Police  656 

V.  Pacific  Railw.  468,  472 

Goshen  Turnpike  Co.  v.  Hurtin       163 

Gould  r.  Hudson  River  Railw.      231, 

308, 323 
Governor  &  Company  of  Copper 
Miners  v.  Fox      596,  597,  698,  599, 

601 
Governor  &  Company  of  Plate 

Manufacturers  v.  Meredith  304 

Grady,  ex  parte  147,  618 

Graflf  ».  City  of  Baltimore  286 

r.  Pittsburg  &  Steubenville 

Railw.  119,  183 

Graham,  ex  parte  69 

r.  Birkenhead  75 


TABLE  OF  CASES. 


Ixiii 


Grand     Gulf     Railw.     &    Bank 

r.  State  648 

Grand  J.  &  Depot  Co.  v.  County 

Commissioners  821 

Grand  Junction  Railw.  r.  White     483 
Grannahan  v.  Hannibal  &  St.  Jo- 
seph Railw.  444 
Grant  r.  Mechanics^  Bank  of  Phil- 
adelphia 117 
Gratz  r.  Redd  164 
Gravenstine's  Appeal  76 
Gray  r.  Coffin                                    151 
p.  Hook                                    677 
p.  Liverpool  &  Bury  Railw.    46, 
218,  238 
r.  Monongahela  Navigation 

Co.  196 

V.  Portland  Bank  164 

Gravble   p.   York   &  Gettysburg 

Turnpike  Co.  187,  188 

Gravs  p.  Lynchb.  &  Salem  Turn- 
pike Co.  67,  164 
Great  Falls  &  Conway  Railw.  p. 

Copp  178 

Great  Luxembourg  Railw.  p.  Mag- 
nay  581 
Great  North  of  England,  Clarence 
&  Hartlepool  Junction  Railw.  p. 
Clarence  Railw.  876 
Great  North  of  England  Railw.  p. 

Biddulph  6,  148 

Great  Northern  Railw.  ex  parte      866 
p.  Eastern  Counties 

Railw.  687 

r.  Harrison  436 

p.  Kennedy  165 

p.  S.  Yorks.  Railw.    447 
Gi^at  Western  Railw.  r.  Bacon       479 
p.  Birmingham  &  Ox- 
ford June.  Railw.   38, 
691 
p.  Decatur  806 

p.  Geddis  479 

p.  Goodman  103 

p.  Helm  478 

p.  Metropolitan  Co.       144 
p.  Mortbland  479 

p.  Oxford,  Worcester 
&  Wolverhampton 
Railw.  621 

Great  Western  Railw.  Co.  p.  Reg. 

639,640 
p.  Rushout  82,  691 

p.  Thompson  484 

Greathed  p.  S.  W.  &  Dorchester 

Railw.  6 

Green  p.  African  Ep.  Meth.  Soc.     656 

r.  Boody  247 

p.  Miller  84 


Gr«en  p.  Morris  &  Es'x  Railw.  266, 279 

p.  Murray  131 

p.  S€}inour  70 

p.  Winter  186 

Greenaway  p.  Adams  186 

Greene  p.  Dennis  8 

Greenville  and  Columbia  R.    p. 

Cathcart  166 

p.  Coleman    197,  199 

p.  Nunnamaker     266 

p.  Partlow      261,  2G2 

p.  Smith  164 

p.  Woodsides         188 

Greenway  p.  Mead  661 

Greenwood  p.  Wilton  Railw.  270,  338 

Gregory  p.  Patchett  618 

Gregg  p.  Gregg  497 

Grizcwood  p.  Blane  121 

Groux  &  C.  Co.  p.  Cooper  61 

Guest  p.  Homfray  225 

Gunn   p.    London   &    Lancashire 

Ass.  Co.  16,  683 


H. 

H.  &  P.  Plank-Road  Co.  p.  Br)'an 

188  208 
H.  B.  Coal  Co.  P.  Teamie  '  167 

Habersham  p.  Savannah,  &c.  Canal 

Co.  641 

Hackett  p.  Boston,  Cone.  &  Mont. 

Railw.  276 

Haddon  p.  Ayers  682 

Hager  p.  Reed  182 . 

Hagerstown   Turnpike  Co.   p. 

Creger  8 

Haight  p.  City  of  Keokuk  310 

Haines  p.  Taylor  387 

Haldeman  p.  Fenn.  Railw.  264 

Hale  p.  Union  Mutual  Fire  Ins. 

Co.  608 

Hall  p.  Chaffee  226 

p.  Norfolk  Estuary  Co.    118,  131 
p.  Pickering  514 

p.  Power  94,  96 

p.  Selma  &  Tenn.  Railw.         188 
p.  U.  S.  Insurance  Co.     1 16,  182 
p.  Vt.  &  Mass.  Railw.  41,  42, 670 
Halloran   p.   N.   Y.   &  Harlem 

Railw.  466 

Halstead  p.  Mayor  of  New  York     232 
Hambro  p.   Hull  &  London  Fire 

Ins.  Co.  664 

Hamdcn  p.  New  Haven  &  North- 
ampton Co.  639 
Hamilton   p.   Annapolis   &   Elk 

Ridge  Railw.  254,  281 


Ixiv 


TABLE  OF   CASES. 


Hamilton  v.  New  York  &  Harlem 

Railw.  305 

V.  Newcastle    &  Dan- 
ville Railw.  568 
V.  Smith  8 
Hamilton  Avenue,  Matter  of           260 
Hamilton  Plank-Road  v.  Rice       197, 

203 
Hammack  v.  White  462 

Hammon  r.  Southeastern  Railw.  451 
Hanna  r.  Cin.  &  F.  W.  Railw.  197 
Hannibal  &  St.  Joseph  Railw.  ». 

Higgins  531 

V.  Rowland  278 

Hannuie  v.  Goldner  120,  128 

Harborough  v.  Shardlow  285 

Harbv  v.  E.  &  W.  I.  Docks  &  B. 

J.  Railw.  396 

Hard,    Adm'r,   v.  Vt.  &  Canada 

Railw.  521,  529 

Harding  r.  Goodlet  218 

Hare  ».  London  &  N.  W.  Railw.    122, 

612 
V.  Waring  128 

Hargreaves  v.  Lancaster  &  Preston 

J.  Railw.  42 

V.  Parsons  111 

Harlaem  Canal  Co.  r.  Seixas  164 

Harrington  v.  Du  Chastel  577 

Harris,  ex  parte  122 

V.  Roof  578 

Harris  v.  Stevens  97 

Harrisburg  v.  Crangle  282 

Harrison  v.  Heathom  9 

V.   Lexington   &  Ohio 

Railw.  220 

Hart  V.  Mayor  of  Albany  232 

V.  Western  Railw.  454 

Hartford  &  N.  H.  Railw.  ».  Boor- 
man  ,       156, 185 
V.  Croswell        193,  194 
V.  Kennedy  163 
Hartly  v.  Harm  an                              586 
Harvard  Branch  Railway  v.  Rand    277 
Harvevw.  Lackawanna  &  Bloomsb. 
Railw.                                   265,  345 
V.  Lloyd                      271,  363 
V.  Thomas                             368 
Hasking  v.  Phillips                           867 
Haslett's   Executors    v.  Wother- 

spoon  15 

Has  well     V.     Vermont    Central 

Railw.  366 

Hatch  V.  Vermont  Central  Railw.  233, 
264,  293,  304,  331,  341,  343 
Hattersley  v.  Shelbume  48,  617 

Hawkes  v.  Eastern  Coimties  Railw.  25, 
26,  32,  34,  36 
Hawkins,  ex  parte  375 


Hawley    r.    Baltimore    &    Ohio 

Railw.  518,  528 

Hawthorne     v.    Newcastle-upon- 
Tyne  &  N.  Shields  Railw.  421 
Hay  ».  Cohoes  Company         286,  511 
Hayden  v.  Cabot                              539 
V.  Noyes  89 
Hayes  v.  Shackford                           242 
r.  Western  Railw.         618,  520 
Hayne  v.  Beauchamp                  66,  110 
Haynes  v.  Barton                              348 
r.  East.     Tenn.    &   Ga. 

RaUw.  521 

r.  Palmer  185 

V.  Thomas  308 

Ha}'ward  v.  Mayor  of  New  York     252 

Hazen  v.  Boston  &  Maine  Railw.  242, 

262,  514 
Healey  v.  Story  567 

Heane  v.  Rogers  10 

Heart  v.  State  Bank  112,  118 

Heaston  v.  Cincinnati  &  F.  W.  R.   67, 

...  .         ^ 

V.  Cincinnati  &  C.  Railw. 

148,  149 
Heathcote  v.  North  Staffordshire 

Railw.  43,  641 

Hedges  r.  Metropolitan  Railw.        358 
Heffner  r.  Commonwealth  645 

Helm  V.  Swiggett  646,  655 

Hemingway  v.  Fernandes  2 

Henderson  &  Nashville  Railw.  v. 

Leavell  172 

Henderson  v.  Australian  Royal  Mail 

Steam  Nav.  Co.   597 
V.  Mayor  of  New  Or- 
leans 281 
V.  Railw.                160,  621 
Hennessey  v.  Farrel  409 
Henry   v.  Alleghany     &     Pittsb. 

Bridge  Co.  293,  304 

V.  Dubuque  &  Pacific  Railw. 

251,  265,  274,  284,  483,  487 

V.  Rut.  &  Bur.  Railw.         570 

V.  Vennilion  Railw.    169,  170, 

187,  206 

V.  Vermont  Central  Railw.  295 

Hentz  V.  Long  Island  Railw.  305 

Herbein  v.  The  Railroad  276 

Herkimer  M.  &  H.  Co.  v.  Small     164 

Herrick  v,  Vermont  Central  Railw. 

411,  416,  423,  429 
Herring  ».  Wil.  &  R.  Railw.  548 

Hersey  v.  Merrimac  Mutual  Fire 

Insurance  Co.'  275 

Hertford  v.  Boore  225 

Hester  v.  Memphis  &  Charleston 

Railw.  201 

Hetherington  r.  Hayden  248 


TABLE   OP   CASES. 


Ixv 


Hewett  V.  Swift  516 

Hewitt  V.  Price  120,  121 

Hewson  v.  London  &  S.  W.  Railw.  354 
Hibbard  v.  New  York  and  Erie 

Railw.  101,  103 

Hibblewhite  v.  McMorine      120,  121, 

125,  128 
Hibcrnia  Turnpike  Co,  v.  Hender- 
son 187 
Hiekock  r.  Plattsburgh  232 
Hicks  V.  Launceston  68 
Higgins  r.  Livingstone  669 
Highland  Turnpike  Co.  v.  McKcan 

68,  109,  187,  188 
Hightowcr  v.  Thornton  164,  170 

Higley  v.  Lancaster  &  Y.  Railw.     367 
Hilcoat  r.  Arrhbishops  of  Canter- 
bury &  York  846 
Hill  V.  Great  N.  Railw.  367 
r.  Manchester      Waterworks 

Co.  574 

r.  Mohawk  &  H.  Railw    263,  264 

V.  South  Staffordshire  Railw.  596 

V.  Western  Vermont  Railw.     248 

Hilles  V.  Parish  57 

Hilliard  v.  Goold       91,  104,  106,  557 

V.  Richardson  505 

Hilton  r.  Giraud  111 

Hindu  V.  Pinkerton  575,  601 

Hitchcock  V.  Danbury  &  Norwalk 

Railw.  392 

c.  Giddings  143 

Hoagland  v.  Bell  158 

p.  Cin.  &  F.  W.  Railw.  163 
Hoare,  ex  parte  138,  617 

Hobbittr.  London  &  N.  W.  Railw.  503 
Hochster  c.  De  Latour  412 

Hodges  r.  Kut.  &  Bur.  Railw.        570 
Hodgkinsonp.  National  Live  Stock 

Ins.  Co.  582 

Hodson  p.  Davies  130 

Hogg  r.  Zanesville  Canal  Co.  324 

Holi'omb  V.  N.  H.  D.  B.  Co.  84 

Hohlen  r.  Rut.  &  Bur.  Railw.  489,  491 
Hole  p.  Barlow  337 

V.  Sittingbourne  &  Sheerness 
Railw.  607 

HoUiday  r.  St.  Leonard's  Shore- 
ditch  606 
Hollister  p.  Union  Co.  296 
Holmes  v.  Gilliland  68 
r.  Higgins  13 
Homersham    p.    Wolverhampton 

Waterworks  411,595 

Honnerp.  Illinois  Central  Railw.  618, 

528 
Hooker  p.  N.  II.  &  N.  Y.  Railw.  296 
pj  N.  II.  &  Northampton 
Co.  289,  331 


Hooker  p.  Utioa  &  Minden  Turn- 
pike 250 
Hop  &  Malt  Company,  in  re  141 
Hopkins  p.  Prescott                           577 
Horn  p.  Atlantic  &  St.  Lawrence 

Railw.  466,  489 

Hornaday  p.  Ind.  &  111.  Cent.  R.R.  202 
Horner's  Estate,  in  re  218 

Horton  p.  Westminster  Improve- 
ment Comm.  674 
Hortsman  p.   Lexington  &  Cot. 

Railw.  219 

Iloskinj^  V.  Phillips  366 

Plotchkiss  p.  Auburn  &  Rochester 

Railw.  270 

Ilousatonic  Railw.  p.  Waterbury     468 

Howard  p.  Gage  637,  656 

p.  Wilmington  &  Susque- 

hannah  Railw.  408 

Howden  v.  Simpson  23,  24 

Howe  p.  Dirrel  669 

p.  Starkweather  112 

Hubbard  v.  ('happel  63 

p.  Russell  331 

Ilubbersty   p.    Manch.,  Sheff.    & 

Lincolnsh.  Railw.  124 

Ilubgh  p.  N.  O.  &  C.  Railw.  524 

Iluddersfield  Canal  Co.  p.  Buckley 

165,  182,  184 
Hudson  p.  Carman  67,  84 

Hudson  &  Delaware  Canal  Co.  p. 

N.  Y.  &  Erie  Railw.   257 
Hudson  River  Railw.  p.  Cutwater 

283,  868 
Ilueston  V.  Eaton  &  II.  Railw.  336 
Hugh  r.  N.  O.  &  C.  Railw.  526 

Hughes  p.    Chester  &  Holyhead 
Railw.  400 

p.  Parker  41 

p.  Providence  &  Worces- 
ter Railw.  299.  398 
Hull  Co.  p.  Wellesley  15,  167 
Humble  p.  Langston        115,  124,  125, 
128.  134,  136,  137.  138 
p.  MitcheU                   111,  132 
Humfrey  p.  Dale  130 
Hunt  p.  Adams  126 
p.  Gunli  16 
p.  Shrewsbury    &    Chester 

Railw.  195 

p.  Test  678 

Hurd  P.  Rut.  &  Bur.  Railw.  487 

Ilutchins,  Adm'r  v.  State  Bank        112 

Hutchinson  p.  Manchester,  Bury.  & 

Rossendale  Railw.  368 
p.  York  &  Newcastle 

Railw.  501 

p.  York.  Newcastle.  & 
Berwick  R.     6>18,  528 


Ixvi 


TABLE  OF   CASES. 


Hutton  0.  London  &  S.  W.  Railw. 

217.  288,  371 
Huyett  V.  Phil.  &  Read.  RaUw.  453 
Hyain,  ex  parte  157 

Hyains  v.  Webster  243 

Hyatt  V.  Whipple  68 


m.  Central  Railw.  r.  Buckner         544 
Illinois  &  Michigan  Canal  v.  Chica- 
go &  R.  I.  Railw.  260 
Illinois  &  Wisconsin  Railw.  v.  Van 

Horn  274,  276 

Illinois  Central  Railw,  v.  Davney    515 
V.  Dickerson  496 

V.  Goodwin  479 

V.  Kanouse  488 

V.  Phelps  478,  496 
V.  Reedy  488,  553 
».  Swearingen  479, 
494,  496 
V.  United  States  230, 
499 
V.  Williams  496 

Illinois  Grand  T.  Railw.  v.  Cook     392 
Illinois  River  Railw.  v.  Beers  194 

V.  Casey  73 

V.  Zimmer        73 
Imlay  v.  Union  Branch  Railw.         307 
Imperial  Gas  Light  Co.  v.  Broad- 
bent  336,  339 
Imperial  Mercantile  Credit  Asso- 
ciation, in  re  76 
Ind.,  &c.  Railw.  r.  Elliott       499,  502 
V.  Meek        491,  502 
V.  Moore       495,  499 
V.  Snelling             499 
r.  Wright              495 
Ind.  &  Cin.  Railw.  v.  Guard            496 
V.  Jewett  84 
V.  Kercheval     492 
V.  Kinney          497 
V.  McKinney     496 
V.  Oestel            494 
Ind.  &  Cincin.  Railw.  v.  Caldwell  465, 

488 

Ind.  &  Madison  Railw.  v.  Solomon  603 

Ind.  Central  Railw.  v.  Hunter  262,  264 

V.  Leamon        494 

Ind.,  Pittsb.,  &  Cleve.  Railw.  v. 

Truitt  494 

Indian.  Railw.  v.  Gapen  491 

Indiana   &   Ebensburg  Turnpike 

Co.  V.  Phillips  195 

Indiana,  &c.  Railw.  v.  Fisher  492 

».  Kercheval    494 


Indiana  Central  Railw.  v.  Moore     498 
V.  Cakes    270, 
335 
Indianapolis  Railw.  v.  Adkins  495 

r.  Klein  521,  528 
».  Love  521,  528 
V.  Sparr  476 

V.  Williams      476 
Indianapolis,  &c.  Railw.  v.  Kin- 
ney 466 
r.  Meek          504 
V.  Townsend  491 
».  Wharton     477 
Inge  r.  Birmingham  W.  &  S.  V. 

Railw.  Co.  133 

IngersoU  v.  Stockbridge  and  Pitts- 
field  Railw.  589 
Inglis  V.  Great  Northern  Railw.     165, 

571 

Ins.  Co.  V.  Smith  118 

V.  Woodruff  455 

Irish  Peat  Co.  v.  Phillips  15 

Irvin  V.  Turnpike  Co.  198,  256 

Irvine  v.  Swann  194 

V.  Turnpike  Co.  194 

V.  Walker  194 

Isbell  V.  N.  Y.  &  N.  H.  Railw.     499, 

501,  503,  547 

Isham  V.  Ben.  Iron  Co.  112 


Jackson  ».  Cocker  113,  134 

V.  Laniphire  236 

V.  North  Wales  Railw.       431 
r.  People  661 

V.  Rutland  &  Burlington 

Railw.         250,  465,  497 
Jacob  V.  Louisville  263 

Jacobs  V.  Peterborough  and  Shir- 
ley Railw.  224 
Jacques  v.  Chambers        134,  1.50,  151 
James  v.  Portsmouth  &  Concord 

Railw.  442 

V.  Woodruff  146 

James  River  &  Kanawha  Co.  v. 

Turner  262 

Jameson  v.  Ware  439 

Janes ville  v.  Milw.  &  Miss.  Railw.  311 

Jarrett  v.  Kennedy  12 

Jefferson  Railw.  ».  Applegate         491 

V.  Dougherty         491 

Jencks  v.  Coleman  102 

Jenkins  ».  Union  Turnpike  Co.       187 

Jennings,  ex  parte  627 

V.  Broughton  •  211 

V.  Great  Western  Railw.  106 


TABLE   OF  CASES. 


Ixvii 


Jepherson  v.  Hunt  348 

Jetter  r.  New  Y.  &  H.  Railw.         608 

Jewell  p.  Stead  895 

Joel  V.  Morrison  512 

Johns  V.  Johns  112 

Johnson,  ex  parte  657 

r.  A.  &  St.  L.  Railw.       289 

V.  Anderson  298 

r.  Bank  of  United  States  126 

V.  Concord  Railw.  101 

r.  Hudinon  River  Railw.    548 

V.  MeKessack  664 

V.  Shrewsbury  &  B. 

Railw.  588 

r.  Wabash  &  M.  V. 

Railw.  205 

Johnston  v.  S.  W.  R.  R.  Bank  66 

Joliet.  &c.  Railw.  p.  Barrows  662 

Joliet  &  N.  I.  Railw.  p.  Jones        467 

Jones  p.  Bird  606 

r.  Chainl>erlain  441 

p.  Mersey  Board  605 

p.  Portsmouth    &    Concord 

Railw.  441 

p.  Waltham  538 

Josephs  p.  Pebrer  135 

Joy  p.  Jackson  &  Michigan  Plank- 
Road  Co.  71 
Jubb  p.  Hull  Dock  Co.             346,  662 
Judson    p.    New   York    &    New 

Hayei)  Railw.  40O 

Junction  Railw.  p.  Reeve         205,  575 
Justice,  &c.  p.  Hunt  661 


K. 

K.  P.  &  R.  Railw.  p.  Marsh  392 

Kartri<<;lit  p.  Buffalo  Commercial 

Bank  146 

Kcan  p.  Johnson  74 

Kea.«<y  p.  Louisville  264 

Keech  p.  Bait.  &  Wash.  Railw.   68, 

476 
Keegan  p.  Western  Railw.  518 

Keith  p.  Cheshire  Railw.  488.  489 

Kellogg  p.  Krauser  276 

Kelly  p.  Mayor  of  New  York  504 

Kemp  p.  London  &  Br.  Railw.  359 
Kems  p.  O'Reilly  416 

Kennard  p.  Burton  546 

Kcnnelwc  &  Portland  Railw,  p. 

Kendall  164 

P.  Waters  160 

Kennedy  p.  Colton  205 

p.  Panama  Mail  Co.  212 

Kennett  Nav.  Co.  p.  Withington     335 

Kennett's  Petition  294 


Kenosha,  Rookford,&  Rock  Island 

Railw.  p.  Marsh  198 

Kent  p.  N.  Y.  Central  Railw.  444,  586 
Kentucky,  Louisville,  &c.  Railw. 

p.  Milton  484 

Keppell  p.  Bailey  2 

Kerr,  Matter  of  258 

Kerridge  p.  Hesse  9 

Kerwhacker  p.  C.  C.  &  C.  Railw.  488, 

547 
Kerwin,  ex  parte  126 

Kidwcll  p.  Bait.  &  Ohio  Railw.  417 
Kidwelly  Canal  Co.  p.  Raby  6,  203 
Kimball  p.  Cocheco  Railw.  347 

p.  Kennebec  &  Portland 

Railw.  279 

Kimble   p.   White   Water  Valley 

Canal  334 

King  p.  Boston  &  Worcester  Railw.  518 
r.  Brecknock    &    Abberga- 
venny    Canal    Naviga- 
tion 626 
p.  Bristol  Dock  Co.         342,  642 
p.  Chipping  Norton  111 
p.  Conmiissioners    of   Man- 
chester                              859 
p.  Commissioners  of  Thames 

&  Isis  342 

p.  Commissioners  under  Lon- 
don Dock  Acts  375 
p.  Dr.  Gower  644 
p.  Elliott  65,  110,  190 
p.  Great  Marlow  84 
V.  Gray's  Inn  655 
p.  Hungorford  Market  Co.  359 
p.  Inhab.  of  Pennegoes  661 
p.  Justices  of  West  Riding 

of  Yorkshire  648 

p.  Justices  of  York  643 

p.  Langhorn  77,  82 

p.  Leeds  &  Sclby  Railw.         342 
p.  London  Dock  Co,  342 

p.  Newcastle-upon-Tyne         627 
p.  Pagham  304 

p,  Pasmore  70 

p.  Pease  462 

p.  Pedley  505 

p.  Proprietors  of  Bir.  Canal  636 
V.  Northlcach  &  Witney 

Roads  '        625 

p.  Theodorick  77 

p.  Wilts  &  Berks  Canal  Nav.  625 
p.  Whitaker  84 

p.  Win  wick  84 

p.  Witham  Nav.  Co.  376 

p.  Wvcombe  Railw.         354,  858 
Kirk  p.  Bell  562 

p.  Guardians     of     Bromley 

Union  411 


Ixviii 


TABLE  OF   CASES. 


Kish  r.  Venezuela  Railw.  665 

Klein    v.    Alton     &     Sangamon 

Railw.  164,  188 

Knapp  V.  L.  C.  &  Dover  Railw.     857 

r.  MiAuley  239 

Knight  V.  Abert  466 

V.  Barber  111 

r.  Carrolton  Railw.  391 

V.  Fox  603 

V.  Toledo  &  Wabash  Railw.  496 

Knorr  v.  Germantown  Railw.  334 

Knox  Co.  V.  Aspinwall  626,  642 

Koch  t?.  Dauphin  251 

Kramer  r.  Cleve.  &  Pittsb.  Railw.  274 

Kyle  r.  Auburn  &  Roch.  RaUw.    290, 

481 


L. 


L.  &  Y.  Railw.  V.  Evans  341,  371 

Lacharme  r.  Quartz  Rock  Mari- 
posa Gold  Mining  Co.  654 
Lackland  r.  Xorth  Missouri  Railw.  312 
Lade  r.  Shepherd  301 
Lafayette  &  Ind.  Railw.  c.  Shriner 

466,  468,  490,  497 
Lafayette  Plank-Road  Co.  v.  New 

Albany,  &c.  Railw.  288,  292,  344 
Laird  v.  Birkenhead  Railw.  226 

Lake  v.  Butler  395 

17.  Duke  of  Argyll  13 

Lake  Erie,  &c.  Railw.  v.  Eckler     444 
Lake  Ontario,  A.  &  N.  Y.  Railw. 

V.  Mason  148,  190,  191 

Lamb  v.  Lynd  644 

Lamert  v.  Heath  130 

L'Anioureux  v.  Gould  204 

Laniprell  v.  Billericay  Union  596,  597, 

598,  599 
Lancashire  &  Y.  Railw.  r.  Evans    341 
V.  East  L.  Railw.  611 
Lancaster   &    Carlisle    Railw.   v. 

Maryport  &  Carlisle  Railw.  321 
Lancaster  Canal  Co.  r.  Pamaby  602 
Lances'  Appeal  229 

Lane,  ex  parte  147,  572 

Langley  v.  Boston  &  Maine  Railw.  590 
Langlois  v.  Buffalo  &  Rochester 

Railw.  490,  520 

Lantis,  in  re  664 

Lathrop's  Charity  348 

Lauderbrun  v.  Duffy  288 

Laugbamr.  Great  Northern  Railw.  367, 

371 
Laugher  r.  Pointer  503,  606 

Lawrence  r.  Great  N.  Railw.  288,  331, 

341 
V.  Knowles  129 


Lawrenceburg    &    Upper    Miss. 

Railw.  r.  Montgomery  534 

Lawton  V.  Fitchburg  Railw,  483 

Leach  v.  Fobes  132 

Lead  Mining  Co.  v.  Merryweather  583 
Leame  v.  Bray  512 

Leavitt  r.  Towle  299 

Lebanon  v.  Alcott  335 

Lee  V.  Milner  874,  635,  657 

Leech  v.  Caldwell  416 

Leeds  &  T.  Railw.  v.  Feamley  191,  192 
Lefever  r.  Lefever  141 

Legg  r.  Belfast  &  Bellamy  Railw.  348 
Lehigh  Val.ey  Railw.  v.  Lazarus     290 
V.  Trone      288, 
329 
Leigh  p.  Hind  394 

Lemmex  r.  Vermont  Central  Railw. 

289 
Leominster  Canal  Co.  v.  Shrews- 
bury &  Hereford  Railw.  592 
Leonardsville  Bank  v.  Willard  68 
Lesher  v.  Wabash  Nav.  Co.     241,  246 
Levering  v.  Railway  Co.                   238 
Leviston  r.  Junction  Railw.              335 
Lewey's  Island  Railw.  v.  Bolton      166 
Lewis  V.  Billing  6 
V.  New  Y.  Central  Railw.     449 
V.  Railw.                                  347 
V.  Robertson                           110 
r.  Smith                                     13 
Lewis  V.    Wilra.   &    Manchester 

Railw.  348 

Lewiston  r.  County  Commissioners  242 
Lexington  &  Ohio  Railw.  v.  Apple- 
gate  305 
Lexington  &  Ohio  Railw.  v.  Onns- 

by  224 

Lexington    &    West    Cambridge 
Railw.  V.  Chandler      164,  166,  176, 

187 
V.  Staples  167 

Lichfield  v.  Simpson  338 

Lincoln  v.  Saratoga  &  Schenecta- 
dy Railw.  272 
Lincoln  &  K.  Bank  v.  Richardson  195 
Lind  V.  Isle  of  Wight  Ferry  357,  639, 

641 
Lindsay  r.  Commissioners  285 

Lindsey  v.  Att'y  Gen.  666 

V.  Luckett  656 

Lindus  p.  Melrose  567 

Linfield  r.  Old  Colony  Railw.        542, 

611 
Lister  v.  Labley  282 

Littler.  Newport,  A.  &H.  Railw.  242, 

389 

Little  i^Iiami  Railw.  v.  Collett         263 

V.  Naylor         391 


TABLE  OF  CASES. 


Ixix 


Little  Miami  Railw.  v.  Stevens       521, 

258 
Littleton    Manuracturiitg  Co*,   v. 

Parker  177 

Livennore  v.  Jamaica  263,  278 

Livingston  c.  Lynch  194 

r.  Mayor  of  New  York 

298 
Lloyd  r.  Mayor  of  New  York  611 
Loch  r.  Venables  152 

Loder  p.  Kckule  182 

Lodge  No.  1  V.  Ix)dge  No.  1  74 

Ixtgan  V.  Courtown  187 

Londesborougli,  ear  pflrr/e  11 

London,  B.  &  S.  C.  Railw.  in  re    848 
V.  L.  &  S.  W.  &  Ports- 
mouth Railw.  588 
London  &  Bir.  Railw.  r.  Grand 

Junction  Canal  Co.       336,  876 
V.  Winter  602 
London   &   Blac-kwall    Railw.    r. 
Board  of  Works  279 

r.  Letts  348 

London    &    Brighton    Railw.    r. 
Fairclough  120,  126,  165 

r.  Wilson     186 
London  &  N.  W.  Railw.  p.  Ack- 

royd  222 

V.  Bradlev  341,  371 
p.  McMichael  179 
p.  Skerton  404 

p.  Smith  371 

Ix>ndon  &  8.  W.  Railw.  ex  parte 

Stevens  366 

p.  Southeastern  Railw.  588 
London  Dock  Co.  p.  Knebell  39 

V.  Sinnott  600 

London  Grand  J.  R.iilw.  p.  Free- 
man 1.56,  181 
V.  Graham  6,  156,  182 
London  Insurance  v.   London  & 

Westminster  Insurance  Co.  61 

Londonderry  &  Coleraine  Railw. 

in  re  148 

Long  Island  Railw.,  Matter  of  81,  92, 
156,  485,  6(]8 
Lord  p.  Wormwood  497 

Lord  Belhaven's  Case  560 

Lord  James  Stuart  p.  London  & 

Northwestern  Railw.    27,  35,  37,  39 
Lord  Petre  p.   Eastern  Counties 

Railw.  25,  46 

Lord  Shrewsbury  p.  North  Staf- 

fortlshire  Railw.  16 

Lorymer  p.  Smith  118 

Lou.  &  Frankfort  Railw.  p.  Ballard 

475,  501 
Louisville,  Cincinnati,  &  Charleston 
Railw.  p.  Letson  72 


Louisville  &  Frankfort  Railw.  p. 

Milton  467,  486 

Louisville  &  Nashville  Branch  Turn- 
pike   Co.  p.    Nasliville    &    Ken- 
tucky Turnpike  Co.  881 
Louisville  &  Nashville  Railw.  v. 

Collins  526 

p.  Thompson  219,  262 

Louisville  Railw.  p.  Chap(>el  285 

Lovering  p.  Railw.  263 

I^w  p.  Conn.  &  Pass.  Railw.      41,  49 

p.  Galena  &  Chicago  Union 

Railw.  244i  661 

I^wber  p.  Mayor  of  New  York       579 

Lowe  p.  E.  «&'K.  Railw,  205 

V.  London  &  N.  W.  Railw.  437, 

696 

Lowell  V.  Boston  &  Lowell  Railw. 

604,  613,  635 
Lowry  p.  Muldrow  183 

Ludlow  p.  New  York  &  Harlem 

Railw.  220 

Lund,  ex  pari e  157 

p.  Midland  Railw.  236 

Lunt  p.  London  &  N.  W.  Railw.    551 
Lycoming  County  p.  Gamble  448 

Lyman   p.   Boston   &   Worcester 

Railw.  452 

p.  Norwich  University        650 
Lyndsay  p.  Conn.  &  Pass.  Rivers 

Railw.  472 

Lyon  p.  Jerome  241,  281 


M. 

M.  &  M.  Railw.  p.  Hodge  668 

M.  &  M.  Savings  Co.  p.  O.  F.  Hall 

Ass.  671 

Macedon  &  Bristol  Plank-Road  p. 

Lapham  203 

Macedon  Plank-Road  r.  Lapliain     197 
MacGregor  p.  Dover  &  Deal  Railw. 

27,  32,  42,  196 
Macham  p.  Fitchburg  Railw.  364 

Mackey   p.    New    lork    Central 

Railw.  644 

Maclaren  p.  Stainton  162 

Macon  p.  Macon  &  Western  Railw.  236 
Macon  &  Western  Railw.  p.  Davis 

471,  542 
V.  McConnell  345 
Mad.  &  Ind.  Railw.  p.  Kane  487 

Maddick  p.  Marshall  14 

Maddox  p.  Graham  650 

Madison  <&  I.  Railw.  p.  Bacon        518, 

528 
Magetti  v.  N.  York  &  Harlem  Railw. 

536 


Ixx 


TABLE  OP   CASES. 


Mahon  v.  Utica  &  Sch.  Railw.         297 
Maiden    &    Melrose     Railw.    v. 

Charlestowii  399 

Maltby  v.  N.  W.  Va.  Railw.  166 

Manchester  &  Lawrence  Railw.  r. 

Fisk  447 

Manchester  &   Leeds   Railw.   v. 

Re^inam  405 

Manchester,   Sh.  &  Lincolnshire 

Railw.  V.  Great  Northern  Railw.  250 

V.  Wallis  465,  497 

V.  Ward  456 

Mangles  v.  Grand  Collier  Dock  Co. 

156,  159,  187 
Manley  r.  St.   Helen's   Canal  & 

Railw.  Co.  533 

Mann  v.  Cooke  156,  163,  207 

».  Currie  156,  164,  182 

V.  Great  S.  &  W.  Railw.      266, 

333,  487 

V.  Pentz  159,  164,  170,  185 

Manning  v.  Commissioners  under 

W.  I.  Dock  Act         375 
r.  Eastern  Counties  Railw. 

374 
Manser  v.  N.  &  E.  Railw.  336 

Mansfield  &  Sandusky  Railw.  v. 

Veeder  416 

March  r.  C.  &  P.  Railw.  331 

Marine  Bank  of  Chicago  v.  Ogden 

409 
Markham  ».  Brown  94 

Markwell,  ex  parte  13 

Marlborough  Man.  Co.  v.  Smith    116, 

118,  557 
Marquis   of   Salisbury  v.    Great 

Northern  Railw.  309,  357 

Marriage    v.    Eastern     Counties 

Railw.  &c.  355 

Marsh  ».  N.  Y.  «&  Erie  Railw.         467 
Marshall  v.  Bait.  &  Ohio  Railw.      577 
J}.  Burton  663 

V.  Queensborough  575 

r.  Stuart  522 

Martin,  ex  parte  281 

V.  Board  of  Police  656 

V.  Lon.,     Ch.,    &  Dover 
Railw.  848 

Mason  v.  Brooklyn  &  Newtown 
RaUw.  393 

r.  Kennebec  &  Portland 

Railw.        270,  288,  334 
V.  London,    Chatham,    & 

Dover  Railw.  362 

».  Stokes  639 

Mass.  Iron  Co.  v.  Hooper  118 

Masterton  v.  Mayor  of  Brooklyn     412 
Maudslay,  ex  paiie  12 

Maundv.  Monmouthshire  Canal  Co.  510 


Maunsell  v.   M.  Great  Western 

(Ireland)  Railw.  48,  617 

May  V.  Burdett  460 

Mayo  Co.  in  re  661,  664 

Mayor  v.  Randolph  304 

Mayor  and  Burgesses   of  Lynne 

Regis.  60 

Mayor,  «S:c.  of  City  of  New  York  ». 

Second  Avenue  Railw.  221 

Mayor,  &c.  of  Pittsburg  v.  Penn. 

Railw.  264 

Mayor  of  Lichfield  v.  Simpson  336 
Mayor  of  Ludlow  ».  Charlton  410, 
595,  597,  598 
Mayor  of  Lynn  v.  Denton  215 

Mavor  of  New  York  v.  Bailey  505 
V.  Furze  332 
Mavor    of   Norwich    v.   Norfolk 

Railw.  35,  614 

Mayor,  &c.  of  Savannah  v.  State  658 
!Mayor  of  Southampton  v.  Graves  214 
Mazetti  ».  N.  Y.  &  Harlem  Railw.  539 
McAllister  v.  Ind.  &  Cin.  Railw.  174 
McArdle  v.  Irish  Iodine  Co.  599 

McAulay    v.    Western    Vermont 

Railw.  284 

McCall  V.  Byram  Manuf.  Co.  57 

V.  Chamberlain  477 

McClaskv  V.  Grand  Rapids  &  Ind. 

Railw."  87,  162 

McCluer  v.  Manchester  &  Law- 
rence Railw.  590 
McClusky  V.  Cromwell  444 
McConnell  v.  Caldwell  662 
McCool  V.  Galena  &  Chicago  Union 

Railw.  501 

McCormack   v.    Terre   Haute   & 

Richmond  Railw.  334 

McCormick  v.  Lafayette  282 

McCoy  V.  Harnett  Co.  630,  642 

McCready  v.  Railw.  Co.  453 

McCullough  V.  Annapolis  &  Elk 

Ridge  R.  84 

McCullough  V.  Maryland  55 

McDaniels  v.  Flower  Brook  Man. 

Co.  79 

McDougall  ».  Jersey  Imperial  Ho- 
tel Co.  65,  144 
McDowell  V.  N.  Y.  Central  Railw.  493 
McElroy    v.    Nashua    &  Lowell 

Railw.  602 

McEwen  v.  Woods  129 

McFarland  v.  Orange  &  Newark 

Horse-Car  Railw.  393 

McGatrick  v.  Wason  523 

McGinity  v.  Mayor  of  New  York  605 
McGowin  v.  Remington  133 

McGregor  v.  Official  Manager  of 

Deal  &  Dover  Railw.  614 


TABLE  OF  CASES. 


Ixxi 


Mc-Heran  v.  Melven  662 

Mclntire  v.  State  261 

Mcintosh  V.  Great  Western  Railw.  481 
V.  Midland  Counties 

Railw.  424 

MiKinley  v.  Ohio,  &e.  Railw.         496 
McLaughlin  v.  Charlotte  &  S.  C. 

Railw.  30.5,  338 

r.  D.  &M.  Railw.  69,  210 

c.  Pryor  518 

^IcMahan  r.  Morrison  197 

McMahon  v.  Cincinnati  Railw.         268 

McManus  r.  Carmichael  828 

p.  Crickott  609,  618 

McMasters  r.  Commonwealth  264 

McMichael  ».  London  &  N.  W. 

Railw.  191 

McMillan  r.  Maysville  &  Lexing- 
ton Railw.        166,  178 
V.  Railroad  Co  618 

V.  Saratoga    &    Wash. 

Railw.      490,  618,  624 
p.  Scott  136 

McRae  v.  Russell  188 

McRee  p.  Wilmington  &  Raleigh 

Railw.  257 

Mcacham  v.  Fitchburg  Railw.  261,  270 
Mead  v.  Keeler  68,  678 

Mcason's  Estate  111 

Meikel  v.  German   Savings  Fund 

Society  62 

Mellen  v.  Western  Railw.  831 

Mellors  p.  Shaw  518,  628 

Memphis  &  Charleston  Railw.  v. 

Payne  284 

Memphis   &   Charlotte   Railw.  p. 

Bibb  474 

Memphis  Freight  Co.  p.  Memphis   229 
Memphis  Railw.  p.  Wilcox  426 

Menilon  p.  County  Comm.  661 

Mercer  p.  McWilliams  240,  282 

p.  Whall  267 

Mercer  County  p.  Pittsburgh  & 

Eric  Railw.  441 

Merrihew    p.   Milwaukie   &   Mis- 

sissinpi  Railw.  104 

Merrill  p.  Ithaca  &  Oswego  Railw.  442 
Merritt  p.  Northern  Railw.  219 

Mersey  Docks  p.  Gibbs  649 

Mersey  Docks  &  Harbor  Board  p. 

Penhallow  605 

Met.  Railw.  p.  Woodhouse  367 

Aletcallc  p.  Hetherington  606 

Methodist    Episcopal    Church   p. 

Jacques  136 

Mexican  &  South  Am.  Co.  in  re     157 

Meyer  p.  North  Missouri  Railw.     476 

Mich.  Southern  &  Northern  Ind. 

Railw.  p.  Fisher  469 


Michigan,  &c.  Railw.  r.  Shannon  492 
Micklethwait  p.  Winter  266 

Middlesex  Turnpike  Co.  v.  Lock    194 
r.  Swan    162 
Middletown  Bank  p.  Magill  116 

Midland  Counties  Railw.  v.  Oswin  218, 

876 
Midland  G.  W.  Railw.  e.  Gordon  6, 

7,  166 
Midland  Railw.  p.  Davkin  466 

Miers  p.  Z.  &  M.  T.  Co.  170 

Mifllin  p.  Ilarrisburg,  Portsmouth, 

M.  &  L.  Railw.  804 

Mil.  &  Miss.  Railw.  t.  Eble  489 

Milburn  p.  Citv  of  Cedar  Rapids    810 
Miles  p.  Bough  '     148,  672 

Milhau  p.  Sharp  233,  806 

MillDam  Co.  p.  Dane  196 

Miller  p.  Auburn  &  Syracuse 

Railw.  219,  297 

p.  Ewer  67 

p.  Illinois  Central  Railw.  & 

Schuyler  133 

p.  Pittsburg  &  Connellsville 

Railw.  175,  207 

r.  Second  Jefferson  Build- 
ing Association  186 
MilUgan  p.  Wedge  603 
Milner  p.  Field  434 
Milnes  p.  Gery  228,  434 
Milnor  p.  Georgia  Railw.  &  Bank- 

-  ing  Co.  416 

p.  New  Jersey  Railw.  260 

p.  Railway  Companies  324 

Milwaukie  &  Miss.  Railw.  p.  Eble  264, 
280,  483,  487 
Mims  p.  Macon  &  W.  Railw.  862 

Miners'  Bank  p.  United  States  64 

Minhinnah  p.  Haines  642 

Minor  p.  Mechanics'  Bank  of  Alex- 
andria 64 
Minot  P.  Curtis                                     60 
Mississippi  Central  Railw.  p.  Mil- 
ler                                                   479 
Miss.  &  Mo.  Railw.  p.  Byington     264 
Miss.,  &c.  Railw.  p.  Cross       666,  669 
Miss.  &  Tcnn.  Railw.  p.  Harris       110 
Miss.,  O.  &  R.  Railw.  p.  Cross       892 
Mitchell  p.  Alestree                           451 
p.  Crassweller                     612 
p.  Ne whall                          129 
p.  Rockland                        666 
p.  Rome  Railw.           188,  194 
Mixer's  Case,  in  re.  Royal  British 

Bank  666 

Mohawk  &  Hudson  Railw.,  Matter 

of  82 

Mohawk  Bridge  Co.  r.  Utica  & 
Sch.  Railw.  257 


Ixxii 


TABLE  OP   CASES. 


Mold  V.  Wheatcroft  226,  861 

Monchet  v.  G.  W.  Railw.  371 

Money  v.  Macleod  677 

Moneypcnny  v.  Hartland  9 

Monkland  &  Kir.  Railw.  v.  Dixon  377 
Monmouth  Canal  Co.  v.  Harford  3 
Monongahela  Navigation  Co.  r. 

Coons  231,  233,  293 

Montgomery  &  West  Point  Railw. 

V.  Varner  274 

Monypunny  v.  Monypenny  40 

Moore  v.  Fitchburg  Railw.  616 

V.  Great  Southern  &  West- 
ern Railw.  339 
V.  Hudson  River   Railw.  438, 
441 
V.  New  Albany  &  Salem 

Railw.  199 

Moorhead  v.  Little  Miami  Railw.  236, 

391 
Morgan  v.  Birnie  417 

V.  King  330 

V.  New  York  &  Albany 

Railw.  170 

V.  Vale  of  Heath  Railw.     518 

Morris  &  Essex  Railw.  v.  Blair       321 

V.  Newark  294, 

306 

Morris  Canal  &  Banking  Co.  v. 

Ryerson  344 

V.  Townsend  87 

Morrison  v.  Steam  Nav.  Co.  647 

Morse,  Petitioner  266,  628,  645 

V.  Auburn  &  Syracuse 

Railw.  613 

r.  Rut.  &  Bur.  Railw.  497 

Morss  V.  Boston  &  Maine  Railw.  487 
Mortimer  v.  Mt;Callan  121 

V.  South  Wales  Railw.     373 
Morton  v.  Barrett  136 

Moshier  v.  Utica  &  Sch.  Railw.  473 
Mount    Washington    Road    Co., 

Matter  of  264 

Mowatt,  ex  parte  11,  12 

V.  Londesborough  12 

Mozley  v.  Alston  86,  591 

Mullins  V.  People  661 

Mumma  v.  Potomac  Co.  170 

Munger  v.   Tonawanda    Railw.    251, 

253,  498 
Munn  V.  Barnum  128 

Munt  V.   Shrewsbury  &   Chester 

Railw.  195,  196 

Murch  V.  Concord  Railw.  589,  603 
Murd^ck's  Appeal  646 

Murphy  v.  City  of  Chicago  222,  540 
Murray  v.  De  Rottenham  136 

V.  Railroad  Co.    398,  470,  554 
V.  South  Car.  Railw.  518,  628 


Mutual  Savings  Bank  v.  Meriden 

Agency  Co.  675 

Myers  v.  Myers  136 

V.  Perigal  111 


N. 

N.  B.  &  C.  L.  Co.  V.  Muggeridge,  122, 

565 
N.  C.  Railw.  V.  Leach  160 

N.  Hampshire  Central  Railw.  v. 

Johnson  175 

N.  O.  &  C.  Railw.  v.  Second  Mu- 
nicipality of  New  Orleans  391 
N.  Penn.  Railw.  v.  Rehman  248 
N.  Y.  &  N.  H.  Railw.  v.  Ketchum  571 
Napier,  ex  parte  644 
Narragansett    Bank    v.    Atlantic 

Silk  Co.  215 

Nash,  ex  parte  654 

Nashville  &  C.  Railw.  v.  Cowardin  391 
Nashville  &  Ch.  Railw.  v.  Peacock  490 
Nashville  Railw.  v.  Cowardin  246 

V.  Dickerson  262 

Nason  ».  Woonsocket  Union  Railw. 

290 
Nathan  v.  Whitlock  169,  170 

Natusch  V.  Irving  194,  195 

Neal  V.  Pittsburgh  &  Connelsville 

Railw.  239 

Neall ».  Hill  668 

Nellis  V.  New  York  Central  Railw. 

448 
Nelson  v.  Eaton  575 

r.  Vt.  &  Canada  Railw.  589 
Nesbitt  V.  L.  C.  &  C.  Railw.  413,  417 
Neuse  River  Nav.  Co.  v.  Commis- 
sioners of  Newbern  210 
Neville  v.  Wilkinson  18,  45 
Nevins  v.  Henderson  14 
Nevitt  V.  Bank  of  Port  Gibson  170 
New  Albany,  &c.  Railw.  v.   Hig- 

man  295 

».  Huff  295 

V.  McNaraara  467 

V.  Pace  494 

New  Albany  &  Salem  Railw.  v. 

Conelly  335 

».  Grooms  629 

V.  Maiden  494 

V.  Pickens  164 

V.  Tilton  494 

New  Albany  Railw.  v.  O'Daily  312 
New  Bedford    Turnpike   Co.    ».. 

Adams  162 

New  Hampshire  Central  Railw.  v. 
Johnson  165,  176 


TABLE  OP  CASES. 


Ixxiii 


New  Jersey  Railw.  r.  Suytlam         2fi7 
New  London  v.  Brainard  286 

New  Orleans  &  O.  Railw.  v.  I^a    216 
New  Orleans,  &c.  Railw.  v.  Har- 
ris 73 
New  Orleans,  Jai^kaon,  &c.  Railw. 

r.  Harris  72 

New  River  Co.  v.  Johnson  339 

New  York  &  Erie  Radw.  r.  Skin- 
ner    470,  484,  486,  487,  498 
».  Younfj  24o 

New  York  Central  Railw.  in  re       2o3 
r.  Marvin  279 
New  York  Citv  River  R.  r.  Pat- 
rick '  184 
New  York  Exchange  Co.  v.  De 

Wolf  161 

Newhurv  r.  Conn.  &  Pass.  Rivers 

Railw'.     .  638 

Newburyport  Bridj»e  Co.  v.  Story  162 
Newcastle,  &c.  Turnpike  Co.  v. 

North  Staffordshire  Railw.  404 

Newcastle  &  R.  Railw.  v.  P.  & 

Ind.  Railw.  256 

Newport  Mech.  Co.  v.  Starbird         60 
Newry    &    Enniskillen   Railw.  v. 

Coombe         192 

V.  Edmunds  148,  168 

Newr}',  W.  &  R.  Railw.  v.  Moss     157 

Newton  r.  Belcher  10 

V.  Liddiard  10 

Niagara   Falls    &    Lake   Ontario 

Railw.  p.  Hotchkiss  236 

Nicholson  r.  New  York   &  New 

Haven  Railw.  267,  299,  306 

Ni'klin  V.  Williams  560 

Nicol,  ex  parte,  in  re  Royal  British  • 

Bank  142 

r.  N.  Y.  &  Erie  Railw.  251,  2.')3   I 
Nixon  V.  Brownlow  193   | 

p.  Tair  Vale  Railw.       412,  422 
Norris  r.  Androscoggin  Railw.         474   ! 
V.  Cooper  8 

V.  Irish  Land  Co.  150 

V.  Vermont  Central  Railw.  219, 
406 
North  American  Colonial  Associa- 
tion of  Ireland  v.  Beiitlcv  148 
North  British  Railw.  v.  Tod    384,  638 
North  Carolina  Railw.  v.  Leach     192, 

-01 
North  Eastern  Railw.  c.  Elliott     221, 

296,  298 
North  Mo.  Railw.  v.  Gott        235,  279 
V.  Lackland        236 
p.  Winkler  178 

North  Penn.  Railw.  v.  Rehnian        497 
North  Shields  Quay  Co.  v.  David- 
sou  169 


North  Staffordshire  Railw.  p.  Dale  399 
p.  Landor  362 
p.  Wood    363 
North  W.  Railw.  p.  McMichael       191 
Northam  B.  &  Roads  Co.  r.  Lon- 
don &  Southampton  Railw.  .397 
Northeastern  Railw.  p.  Payne  391 
V.  Sineath       484. 
487 
Northern  Ind.  Railw.  p.  Martin      491 
Northern    Railw.    p.    Concord    & 
Claremont  Railw.                   229.  259 
p.  Miller  163,  197 
p.  Page  101 
Northop  p.  Newtown  &  Bridge- 
port Turnpike  Co.  118 
Northumberland  r.  At.  St.  Law. 

Railw.  644 

Northwestern  Railw.  p.  Martin        422 
Norton  p.  Valentine  331 

Norwich  &  Lowestoft  Navigation 

Co.  p.  Theobald  1 10,  176 

Norwich  &  Worcester  Railw.  p. 

Cahill      410 
p.  Killingley  399 
Noyes  p.   Rutland  &  Burlington 

Railw.  508,  600 

p.  Smith  624,  528,  529 

r.  Spaulding  115,  121 

Nowell  p.  Andover  &  R.  Railw.      668 

Nulbrown  p.  Thornton  134 

Nutter  r.  I^exingtou  &  West  Cam- 

bridire  Railw.  176 


O. 


Oakes  p.  Oakos  152 

O'Brien  p.  Phil.,   Wil.,  &  Bait. 

Railw.  546,  550 

O'Connor  p.  Pittsburgh  804 

r.  Spaight  421 

O'Donald  p.  E.  Ind.  &  CI.  Railw.     62 

Ogdensb.,  Rome,  &  C.  Railw.  v. 

Frost  65,  164 

Ogdensburgh  Railw.  v.  WoUey        175 
Ogle  p.  Graham  124 

O'Harra  p.  Lexington  Railw.  281 

Ohio,  &c.  Railw.  p.  Ridge  53 

Ohio  &  Mississippi  Railw.  p.  Dun- 
bar 689 
p.  Ind.  &  Cin.  Railw.  589,  619 
V.  Irvin  477 
r.  Jones  •  496 
r.  Meisenhiemer  496 
r.  Mucklins  584 
V.  Quicr  492 
V.  Taylor                               478 


Ixxiv 


TABLE  OP   CASES. 


Ohio   &  Pennsylvania  Railw.   v. 

Wallace  266 

Old  Colony  Railw.  v.  Evans  133 

Old   Colony  &   F.  R.  Railw.  r. 

County  of  Plymouth  400 

Oldtown  &  Lincoln  Railw. ».  Vea- 

zie  177 

O'Neal  V.  King  177 

Oriental  I.  Steam  Co.  v.  Briggs,      69, 

123 
Ormond  v.  Holland  519,  628 

Ornamental    Pyrographic   Wood- 
work Co.  V.  Brown  65 
Orono  r.  Wedgeworth  68 
Orpen,  ex  parte                                   117 
Orr  V.  Bank  of  United  States          103 
r.  Bigelow                                   118 
r.  Gl.  A.  &  M.  J.  J.  Railw.   167, 

570 
Osborne  v.  Bank  of  U.  States  55,  196 
Oswego  Falls  Bridge  Co.  ».  Fish  236 
Ottawa  V.  Chicago,  »&c.  R.  662 

Overmyer  r.  Williams  249 

Overton  v.  Freeman  603 

Owen  V.  Purdv  71 

V.  Van  Uster  669 

Owings  V.  Speed  214 

Oxford  Turnpike  Co.  ».  Bunnell      118 
Oxford,   Worcester,    &    Wolver- 
hampton Railw.  V.  South  Staf- 
fordshire Railw.  249 


P.  &  K.  Railw.  V.  Dunn 

165 

P.  W.  Co.  V.  Brown 

64 

Pacific  Railw.  v.  Chrystal 

263 

I'.  Hughs 

199 

V.  Renshaw 

197 

Pack  V.  Mayor  of  New  York 

604 

Page  V.  Heineburg 
Palmer  v.  Lawrence 

248 

164 

V.  Woodbury 

666 

Palmer    &    Hungerford  Market, 

Matter  of 

345 

Palmer  Co.  v.  Ferrill 

264 

Pardoe  v.  Price 

651 

Parish  v.  Parish 

132 

Parker  v.  Adams 

642 

V.  Boston  &  Maine  Railw. 

270, 

272,  290,  382 

538 

V.  Bristol  &  Exeter  Railw. 

446 

V.  Cutter  Milldam  Co. 

322 

V.  Great  Western  Railw. 

446 

V.  Perkins 

224 

r.  Rensselaer  &  Saratoga 

Railw. 

689 

V.  Smith 

666 

Parker  v.  Thomas  174 

Parkes  v.  Great  Western  Railw.      418 
Parks,  ex  parte  647 

V.  Boston  262,  347 

Parmelee  v.  Oswego  &  Syracuse 


Railw. 
Parnaby  r.  Lancaster  Canal  Co. 


3G2 
602, 
605 
669 
242 
515 
292 


Parrott  v.  Eyre 

Parsons  v.  Howe 

Paterson  Gas  Light  Co.  v.  Brady 

Patten  v.  Northern  Central  Railw 

Paulding  ».    London   &  N.    W. 

Railw.  437 

Paxton  V.  Popham  573 

Peabody  v.  Buentillo  663 

Peachy  r.  Rowland  603 

Peake  v.  Wabash  Railw.  176 

Pearce  v.  M.  &  I.  &  P.  &  L.Railw.  5.o9 
V.  Wycombe  Railw.  387 

Peavey  v.  Calais  Railw.  234,  328 

Peck  V.  North  Staffordshire  Railw.  455 
Pell  V.  Northampton  &  Banbury 

Railw.  367 

Penn.   Commonwealth  ».  Central 

Passenger  Railw.  315 

Penn.  Railw.  u.  Duquesne  Borough  404 
V.  Heister  278 

V.  Keiffer  277 

V.  McClure  278 

r.  Riley  278 

Pennsylvania  Railw.  v.  Common- 
wealth   447 
V.  Porter        238 
Pennsylvania  v.  Wheeling  Bridge 

Co.  324,  329 

Penny,  in  re  664 

Penobscot  &  Kennebec  Railw.  v. 

Dunn  19,  177,  178 

Penobscot  Railw.  v.  Dummer  165,  176, 

177 
V.  White       84,  108, 
176,  566 
People  V.  Albany  &  Vt.  Railw.        640 
V.  Auditor  of  Public  Ac- 
counts 624 
».  Batchelor  78 
V.  Beebe 
V.  Benton 


V.  Board  of  Delegates 
V.  Board  of  Health 


627 
415 
661 
661,  663, 
664 


V.  Caryl 

V.  Collins 

V.  Columbia  C.  P. 

V.  Commissioners  of  Hud 

son 
V.  Cor.  of  N.  York 
».  Everett 


92 
644 
645 


627 

644,  6.55 

627 


J 


TABLE   OP   CASES. 


Ixxv 


People  V.  Finger  627 

V.  First  Judge  of  Columbia  277 
V.  Haws  624,  644 

r.  Hayden  2bS 

p.  Head  628,  665 

V.  Hester  661 

V.  Hilliard  659 

V.  J.  &  M.  Plank-Road  Co.  448, 
670 
r.  Jillson  92 

r.  Kerr  260,  809 

p.  Major  of  Brooklyn  229,  268, 
264 
V.  Mead  642 

r.  Michigan  Southern  Rail- 
way 283 
V.  New   York    &    Harlem 

Railw.  222,  314 

V.  N.  Y.  Central  Railw.       547 
V.  Pacific   Mail   Steam    S. 

Co,  289,  654 

V.  Peabody  664 

V.  Rensselaer  &  Saratoga 

Railw.  328 

V.  Ridgely  666 

V.  River  Kaisin  &  L.  Erie 

R.  668 

r.  Romert  625 

r.  Scannell  668 

V.  St.  Louis  324 

V.  Superv.  of  West  Ches- 
ter 658 
V.  Third  Avenue  Railw,        313 
V.  Thompson                  655,  668 
V.  Throop                       214,  627 
r.  Troy  House  Co,  66 
t>.  Trustees  of  Geneva  Col- 
lege                                  58 
r.  Van  Alstyne                     661 
r.  Vanderbilt                         330 
V.  Wheeler                             661 
r.  White                250,  252,  260 
V.  Wood                                659 
Peoria  &  Oquawka  Railw.  r.  Bit- 
ing                                         165,  199 
Perkins  r.  Eastern  Railw,        466,  497 
V.  Hart                                 585 
Perrine   v.  Ches.    &   Del.   Canal 

Co.  236 

Perry  v.  Marsh  624   j 

Perth   Amboy  Steamboat  Co.  v. 

Parker  67 

Peru  Railw.  v.  Ha-^kett  491 

Peters  v.  St.  Louis  &  L  M.  Railw.  444, 

687 
Pettibone  p.  La  Crosse,  &  Milwau- 

kie  Railw,  387 

Pfeifer  v.  Sheboygan  &  Fond  du 
Lac  Railw.  337 


Phelps  r.  Lyle  86 

Phene  v.  Gilian  136 

Phil.  &  Germ.  Railw.  p.  Wilt  467.  614 
Phil.  &  Reading  Railw,  p.  Derby  611, 

634 
Phil.,  Germantown,  &  N,  Railw. 

p.  Wilt  103.  466.  509,  511 

Philadelphia  &  Reading  Railw,  p. 

Philadelphia  260 

p,  Yeiser  283,  i88 

Philadelphia  &  Trenton  Railw.      233, 

293,  297 
Philad.  &  West  Chester  Railw.  p. 

Hickman  188,  206 

Phiindi'lphia  Railw.  p.  Trimble        271 
Philadelphia.  Wilmington.  &  Haiti- 
more  Kailw.  p.  Cowell  211 
p.  Howard        422.  600 
p.  Quigley        514,  567 
p.  Trimble                483 
Phillijis  p.  Veazie                               688 
Phoenix  Life  Assurance  Co.  157 
Pickard  p.  Smith                                605 
Pickering  p.  Cape  Town  Railw.       413 
p.  Ilfracombe  Kailw.         171 
Pickett  p.  Metropolitan  Railw.         341 
Pier  p.  Final  100 
Piggott  p.  Eastern  Counties  Railw,  450 
Pinkerton  p.  Manchester  &  Law- 
rence Railw,                           147,  166 
Pinkett  p.  Wright                               168 
Piscataqua  Bridge  p.'  New  Hamp- 
shire Bridge                                    259 
Pi-scataqua  Ferry  Co.  p.  Jones       110, 
163,  174,  188 
Pittsburgh  p.  Scott                             283 
Pittsburgh  &  Conncllsville  Railw. 
p.  Clarke                               116,  156 
p.  Stewart                                        208 
Pittsburg   &  Steubenville  Railw. 
p.  Clark                                            114 
p.  Hall                                             272 
Pittsfield  &  North  Adams  Railw, 

p.  Foster  270,  279 

Planche  v.  Colburn  412,  586 

Plank-Road  r.  BulF.  &  P.  Railw,  250 
p.  Buffalo,  &c.  Railw,  281 
p.  Payne  163 

Plank-Road  Co.,  Case  of  324 

Plant  p.  Long  Island  Railw.  294,  298, 

304 
Planters'  &  Merchants'  Bank  p. 

Leavens  112 

Plate  Glass  Ins.  Co.  p.  Sunlev  185 
Plum  p.  Morris  Canal  &  Bank  Co,  304 
Plymouth  Railw,  c.  Colwell  248,  393 
Pochelu  V.  Kemper  62 

Poler  p.  New  York  Central  Railw. 

472,  489 


Ixxvi 


TABLE   OF   CASES. 


Pollard  V.  Hajran  230 

Pollock  V.  Stables  129 

Polly  V.  S.  &  VV.  Railw.  241 

Pomeroy  v.  Ciii.  &  Milw.  Railw.  311 
Pontfhartraiii  Uailw.  v.  Lafayette 

&  Pont.  Railw.  892 

Poole  V.  Mi.UlK'ton  122 

Pope  V.  Great  Eastern  Railw.  359 

Porcher  v.  Gardner  32 

Port  of  London  Assurance  Com- 
pany's Case  81 
Porter  ».  Androsoofrgin  &  Ken.R.  600 
V.  Biickfield  Branch  Railw.    414 
V.  County  Commissioners      270 
Portland,    Saeo,    &    Portsmouth 

Railw.  V.  Graham  166,  187 

Pott  V.  Flather  132 

Potts  V.   Tliames  Haven  Dock  & 

Railw.  Co.  39 

Pottstown  Gas  Co.  v.  Mnrphv  288 
Poulton  ».  London  &  S.  W.  Railw.  516 
Powell  V.  Han.  &  St.  Jos.  Railw.  476 
Powers  V.  Bears  278,  283,  336 

Powles  ».  Page  557 

Poynder  v.  Great  N.  Railw.  241,  366, 

368 
Pratt  V.  Atlantic  &  St.  Lawrence 

Railw.  455 

Prendergrast  v.  Turton  213 

Presbvterian  Society  v.  Auburn  & 
Roch.  Railw.  53,  297,  301,  302, 

304 
Preston  v.  Dub.  &  Pacific  Railw.  247 
V.  Eastern  Counties  Railw.  331 
V.  Grand  Collier  Dock  Co.  159 
V.  Liverpool  &  M.  Railw.  16 
V.  Liverpool,  Manchester, 

&  N.  Railw.  34,  39,  47 

V.  Norfolk  Railw.  331 

Price  I',  (rrand  Rapids  &  I.  R.  Co.  163 

V.  Powell  554 

V.  Price  111 

Prichard  v.  La  Crosse  &  Mil.  Railw. 

471 
Priestley  ».  Foulds  404 

V.  Fowler  518,  522,  528 

V.  Manchester  &  Leeds 

Railw.  336,  376 

Proprietors  of  Locks  &  Canals  v. 
Nashua  &  Lowell  Railw.      271  291, 

348 
Proprietors   of  Quincy   Canal  v. 
.     Newcomb  299 

Protzman  v.  Ind.  &  Cin.  Railw.     233, 

251,  309 
Providence  Bank  v.  Billings  56,  236 
Provost  &  Fellows  of  Eton  College 

V.  Great  Western  Railw.  42 

Pryn  v.  Combrian  Railw.  227 


Pulling  V.   London,  Chatham,  & 

Dover  Railw.  354 

Pulsford  V.  Richards  211 

Putney  r.  Cape  Town  Railw.  413 


Q. 


Quarman  v.  Burnett  608,  605 

Queen  v.  Birmingham  &  Gloucester 

Railw.  508 

V.  Birmingham    &    Oxford 

J.  Railw.  356 

r.  Blizzard  303 

V.  Bloyzard  668 

V.  Bristol  &  Exeter  Railw.  625 
V.  Commissioners  of  Woods 
&    Forests,    ex   parte 
Budge  360 

r.  Eastern  Counties  Railw.  232, 
233,  625,  636 
r.  Great  North  of  England 

Railw.  510 

V.  Lane.  &  iTorkshire  Railw. 

631 
V.  Lofthome  303,  668 

V.  London  &  G.  Railwav  353 
p.  London  &  S.  W.  Rai'lw.  354 
V.  L.  &  Southampton  R.  346 
V.  Man.  &  Leeds  Railw.  626 
V.  North  Union  Railw.  342,  625 
V.  Norwich  «&  Brandon  R.  625 
V.  Stone  359 

V.  York  N.  Midland  R.        638 
Quicke,  ex  parte  357,  640 

Quimby  r.  Vermont  Central  Railw. 

149,  482,  484,  549,  552, 

553 

Quiner  v.  Marblehead  Ins.  Co.        116 


R. 


R.  &  G.  Railw.  v.  Davis  53,  286 

Radcliffp.  Mayor  of  Brooklyn        293, 
.  308,  332 

Railsback  v.  Liberty  &  Abington 
Turnpike  Co.  67,  198 

Railstonc  v.  York,  Newcastle,  & 
B.  Railw.  370 

Railway,  ex  parte  299 

».  Boyer  272 

V.  Bucher  271 

V.  Davis  250 

V.  Gilson  262 

V.  Huminell  345 

r.  Johnson  277 

V.  Lagarde  263 

r.  Mayor  of  York  626 


TABLE   OP   CASES. 


Ixxvii 


Railway  r.  Norton 

649 

r.  Skinner 

470, 

471 

Railw 

Co.  r.  Barron 
V.  (iilson 
r.  Graham 
t.  Richards 

602 

266 

165 

97 

V.  Rodcrigues  160, 166 

,203 

V.  Skinner 

469, 

484 

r.  Washington 

290 

Ram»den  v.  Dvson 

219 

V.  Manchester, 

S. 

J.  & 

A.  Railw. 

280 

,297, 

353 

Ranch 

r.  Llovd  &  Hill 

549 

Rand  v.  Townshend  375 

r.  White  Mountain  Railw.  132 
Randall  v.  Clieshire  Turnpike  Co.  605 
Randle  r.  Williams  664 

Randleson  v.  Murray  505 

Rangiloy  r.  Midland  R.  243 

Ranger  v.  Great  Western  Railw.    888, 
406,  407,  415,  418,  422,  427 
Ranken  p.  E.  &  W.  I.  &  B.  J. 

Railw.  366 

Ranson  t\  Stonington  Savings  Bank  652 
Raphael  r.  Thames  Valley  R.  227 

Rapson  p.  Cubitt  503 

Rathbone  v.  Tioga  Nav.  Co.  219,  248, 

410 
Reaveley,  ex  parte  192 

Redmond  v.  Dickerson  576 

Reedie  r.  London  «&  N.  W.  Railw.  503, 

6C'6 
Reese  &  Fisher  v.  Bank  of  Com- 
merce 117 
Reg.  V.  Abrahams                              655 
r.  Baldwin                                 648 
V.  Bell                                        662 
r.  Bingham                                657 
V.  Bir.  &  Oxford                     629 
e.  Blackwall  Railw.                  658 
r.  Brighton  &  E.  C.  Railw.    628 
r.  Bristol  &  Exeter  Co.  652,  662, 
663 
V.  Bristol  Dock  Co.        642,  658 
t.  Burslem  Board  of  Health  630 
r.  Chester                         626,  645 
V.  Comm.  of  Woods  &  For- 
ests                                   642 
r.  Deptford  Improvement  Co.  650 
V.  Derby                                      626 
V.  Dundalk    &    Enniskillen 

Railw.  641,  647 

E.  Anglian  Railw.  628 

E.  Lancashire  Railw.  6*26 

Fall  628 

Frere  99 

Gamble  &  Bird  659 

General  Cemetery  Co.        123 


Great  W.  liailw. 


626,  647 


Reg.  V.  Green  628 

r.  Grimshaw  83 

r.  Hammond  662 

r.  Hampton  667 

V.  Heart  of  Oak  Benefit  So.  656 
r.  Hull  «&  Selby  Railw.  651 

p.  Jones  626 

p.  Ju.stices  of  Middlesex  628 

p.  Justices  of  Warwickshire  626 
p.  Lane.  &  York  Railw.  639, 
647,  648,  657 
p.  L.  &  Blackwall  liailw.  628 
p.  L.  &  C.  Railw.  655 

■  p.  L.  &  L.  Canal  Co.  661 

p.  Ledgard  et  als.  M.  of  Pool  625 
p.  Lundie  89 

p.  Mariquita  Mining  Co.  215 
p.  Mayor  of  Bridgenorth  628 
p.  Mayor  of  Cambridge  628,  648 
p.  Mayor  of  Chester  647 

p.  Mayor  of  Dartmouth  628 

p.  Mayor  of  Poole  619 

p.  Mayor  of  Stanifonl  652 

p.  Mavor  &  Asses,  of  Rochester 
645 
p.  Mid.  Counties  &  Sh.  Junc- 
tion Railw.  146 
p.  Midland  Co.  &  J.>R.  655 
p.  Norwich  626 
p.  Norwich  &  B.  Railw.  624 
p.  Payn  649 
p.  Pickles  626 
p.  Port  of  Southampton  624,  649 
p.  Registrar  60 
p.  Reynolds  664 
p.  Roedale  &  Hal.  &  S.  R.  657 
p.  Saddlers'  Co.  89.  216,  649 
p.  Southeastern  Railw.  398 
p.  South  Holland  Drainage  665 
p.  South  Wales  Railw.  249 
p.  St.  Margarets  Leicester  649 
p.  St.  Olaves  663 
p.  St.  Peter's  College  628 
p.  Sheffield  A.  &  M.  Railw.  662, 
663,  664 
V.  St.  Saviour  628 
p.  Thames  &  Issis  Com.  628 
p.  Townsend  658 
p.  Trustees  of  Balby  &  Work- 
sop 651 
p.  Trustees  of  Luton  Roads  641 
V.  Victoria  Park  Co.  168,  651, 
659 
p.  Waterford  &  L.  Railw.  244 
p.  Wilson  657 
V.  Wing  115 
V.  Worcestershire,  S.  &  Stafford 
Railw.  654 
V.  York,  N.  &  B.  B.              647 


Ixxviii 


TABLE   OF   CASES. 


Regina  c.  Ambergate  &  C.  Railw.  359, 

638,  648 
V.  Birmingham  &  Glouces- 
ter R^lw.     405,  642,  647, 
648 
V.  Caledonia  Railw.    388,  638, 
642,  649 
V.  Commissioners  of  NorPk  592 
V.  Committee    for     South 

Holland  Drainage  361 

V.  Cottle  356 

V.  E.  &  W.  I.  Docks  & 
Birm.  J.  Railw.    396,  397, 
649 
V.  Eastern  Counties  Railw. 
295,   340,   375,   405,  626, 
628,  638,  639,  643,  647 
V.  Ely  404 

V.  Fisher  342 

c.  General  Cemetery  Co.     146 
V.  L.  &  Greenw.  Railw.       352 
».  Liverpool,  Manchester, 
&  Newcastle-upon-Tyne 
Railw.  145,  643,  658 

V.  London  &  Birmingham 

Railw.  405,  643 

V.  London  &  Northwestern 
RaUw.  372,  646,  647,  657, 
662 
V.  Londonderry  &    Cole- 

raine  Railw.  148 

V.  Manchester     &    Leeds 

Railw.  361,  642,  643,  658, 

660,  664 

V.  Met.  Coram,  of  Sewers    372 

V.  Musson  322 

V.  North  :Midland  Railw.    342, 

651 

c.  Rigby  405 

V.  Russell  403 

V.  Saffron- Walden  Railw.    395 

V.  Sharpe  405 

p.  Sheriff  of  Middlesex         352 

V.  Sheriff  of  Warwickshire  643 

■».  Southeastern  Railw.,  in 

re  Penny  343 

V.  Stein  forth  657 

tJ.  Train  402 

V.  Trustees     of    Swansea 

Harbor  361 

tJ.  United  Kingdom  Tele- 
graph Co.  401 
V.  W.  Midland  R.  647 
V.  York  &  N.  M.  Railw.  359, 
481,641,  649 
Reitenbaugh    v.    Chester   Vallev 

Railw.  238,  263,  264,  266 

Rensselaer  &  Sar.  Railw.,  Matter 
of  484,  487 


Rensselaer  &  W.  PI.  Rd.  Co.  r. 

Barton  165 

Renthrop  v.  Bang  250 

Renwick  v.  N.  York  Cen.  Railw.    545 

Renter  v.  Electric  Telegraph  Co.    599 

Revere  v.  Boston  Copper  Co.    73,  194 

Rex  V.  Allgood  654 

t.  Amery  70 

r.  Archbishop  of  C.  623,  644 

».  Bagshaw  360 

p.  Bank  of  England  644,  653 

V.  Barker  623,  637 

V.  Bishop  of  Chester  624 

V.  Bishop  of  Ely  645,  655 

V.  Bishop  of  London  624 

p.  Breton  655 

r.  Cambridge  655 

V.  Churchwardens  of  Taunton   626 

p.  Clarke  670 

p.  Coin  St.  Aldwins  84 

p.  Comm.  of  C.  Enclosure        657 

p.  Commissioners    of     Dean 

Enclosures  624 

p.  Commissioners     of    Nene 

Outfall  343 

•    p.  Doncaster  78 

p.  Faversham  77 

p.  Fell  6G2 

p.  Guardians  of  Thame  626 

p.  Hertford  655 

p.  Highmore  667 

p.  Hostman  of  Newcastle-upon- 
Tyne  653 
V.  Hungerford  Market    345,  346, 

651 
p.  Inhabitants  of  Kent  404 

p.  Inhabitants  of  Lindsay         404 
p.  Jeyes  624 

p.  Justices  of  Kent  663 

p.  Justices  of  W.  R.  of  York 

in  matter  of  Railw.  662 

p.  Kerrison  404 

p.  Kingston  626 

p.  Kirke  628 

p.  Lincoln's  Inn  655 

p.  Liverpool    &    Manchester 

Railw.  346 

p.  London  Assurance  Co.         654 
p.  Martin  67 

p.  Jklay  77 

p.  JSIayor  of  Colchester  655 

p.  Mayor  of  Liverpool  360 

p.  Mayor  of  York  648 

p.  Medley  514 

p.  Merchant  Tailors'  Co.  653 

p.  M'Kay  667 

p.  Montacute  626 

p.  Morris  405 

p.  Mott  128 


TABLE  OF  CASES. 


Ixxix 


Rex  V.  Mousley  667 

c.  Nottingham    Old     Water 

Works  376,  644,  650 

r.  Ouse  Bank  Com.  648 

V.  Saunders  662 

r.  Severn  R.  3 

V.  Severn  &  Wye  Railw.  624,  657 
©.  Shelley  654 

r.  Sir  William  Lowther  667 

V.  St.  Catherine's  Dock  Co.      651 
r.  St.  Catherine's  Hall  655 

r.  St.  Pancras  648 

©.  Tappenden  627 

r.  Thatcher  656 

r.  Tower  654 

V.  Tregony  655 

r.  Trowns  &  Wyr.  R.  624 

r.  Trustees  of  Norwich  Roads  360 
r.  Truro  668 

•    r.  Trustees  of  Swansea  Har- 
bor 650 
t.  Turkey  Co.  656 
».  Tvrrell  670 
r.  Vice-Ch.  of  Cambridge         70 
V.  Wallis                                     670 
p.  Williams                       655,  667 
r.  Worcester  Canal  Co.    145,  150 
V.  Wright                           402,  403 
Rexfonl  p.  Knight            252,  264,  282 
Reynolds  v.  Dunkirk  &  State  line 

Railw.  226 

Rice  p.  Courtis  155 

p.  Dublin  &  Wicklow  Railw.  395 

p.  Turnpike  Co.  263 

Rich  p.  Basterfield  605 

Richard  p.  La  Crosse  &  Milwaukee 

Railw.  472 

Richards    o.    Sacramento    Valley 

Railw.  487 

p.   Scarborougli  Public 

Market  Co.  390 

Richardson,  ex  parte  14 

p.  Southeastern  Railw.  370 
p.  Vermont  Central 

Railw.  293,  304 

Richmond  p.  N.  London  R.  358 

p.  Sacramento  Valley 

Railw.  477 

Richmond  &  Petersburg  Railw.  p. 

Jones  470 

Riclimond  Railw.  v.  Louisa  Railw.  256 
Ricker  r.  Fairbanks  416 

Rirkett  p.  Met.  Railw.  Co.      338,  344 
Ricketts  p.  E.  &  W.  L  Docks  &  B. 

J.  Railw.  465,  497 

Ridley  p.  Plymouth  Banking  Co.   658, 

672 
Rioter's  case  624 

Ripley  p.  Sampson  162 


River  Dunn  Nav.  Co.  v.  N.  Mid- 
land Railw.  196 
Robbins,  ex  parte                              651 
p.  Milwaukee  &  Horicon 
Railw.                                   262,  847 
Robinson  p.  Chartered  Bank  116 
p.  Nesbitt  171 
V.  New  York  &    Erie 

Railw.  295 

V.  Supervisors  661 

Roberts  p.  Button  567,  568 

p.  Great  Western  Railw.    491 

p.  Knapp  272 

p.  Ohio  &  Mobile  Railw.    180 

p.  Price  82 

p.  Read  660 

p.  Smith         .  628 

Robson,  in  re  662 

Rocliester   &   Syracuse  Railw.  p. 

Budlong  262,  272,  276,  278 

Roch.  White  Lead  Co.  p.  Roch- 
ester 832 
Roe  p.  Birkenhead,  Lancashire,  & 

Cheshire  Junction  Railw.^  102 

Rogers,  ex  parte  72,  627 

p.  Bradshaw  256,  281, 282,  298 
p.  Huntingdon  117 

p.  Huntingdon  Bank  116 

p.  Kennebec  &  Portland 

Railw.  295,  322 

p.  Newburyport    Railw.  41i0, 

501 

Romaine  p.  Kinshimer  662 

Roman  p.  Fry  110,  116 

Rood  p.  New  York  &  Erie  Railw.  452 

Rose  p.  Truax  578 

Rosenthal  v.  Madison  PI.  Rd.  Co.    60 

Rosevelt  p.  Brown  138,  156 

Ross  p.  Adams  348 

p.  Boston  &  Worcester  Railw.  456 

p.  E.  T.  &  E.  Railw.  280 

p.  Elizabethtown  &    Somer- 

ville  Railw.  269,  272 

V.  Lafayette  &  Ind.  Railw.      180 

p.  Madison  611 

Roach  p.  Great  Western  Railw.      421 

Rounds  p.  Mumford  304 

Rowe  p.  Shilson  406 

Roxburyp.  Boston  &  Prov.  Railw.  226 

Royal  British  Bank,  in  re  666 

Brockwall's  Case        211 

Mixer's  Case  664 

p.  Turquand       673,  674 

Royal  Exchange  Insurance  Co.  p. 

Moore  127 

Rubottom  r.  McClure  282 

Ruck  p.  Williams  606 

Rundlc  p.   Delaware    &   Raritan 

Canal  Co.  53,  260 


Ixxx 


TABLE   OP   CASES. 


Runyan  v.  Lessee  of  Coster  57 

Russell  r.  Hudson  River  Railw.       521 
Rust  V.  Low  250,  497 

Rut.  &  Bur,  Railw.  v.  Procter        559 
Ryan  v.  Cumberland  Valley  Railw.  518, 

528 
r.  New  Y.  Central  Railw.      463 
Ryder  v.  Alton  &  Sangamon  Railw. 

164,  181 


S. 


S.  Carolina  Railw.  r.  Blake  244 

S.  T.  &  A.  Railw.  in  re  344 

S.  P.  Met.  Railw.  v.  Woodhouse    640 
Sabin  v.  Bank  of  Woodstock  155 

V.  Vermont  Central  Railw.  286, 
288 
Sacramento  Railw.  v.  Moffatt  347 

Sacramento  Valley  Railw.  v.  Mof- 
fatt 482 
Sadd  V.  Maldon,  W.  &  Br.  Railw.  360, 

389 
Sagory  v.  Dubois  164 

Salem  Mill-Dam  Co.  v.  Ropes  15,  109, 

162,  176 
Salem   &   S.   Dan  vers  Railw.   v. 

County  Comm.  300,  665 

Salomons  v.  Laing  31,  557,  561 

Sampson  r.  Bowdoinham  Steam- 
Mill  Co.  81 
San  Antonio  v.  Lewis                       410 
Sanders  v.  Guardians  of  St.  Neot's 

Union  595,  698 

Sanderson     r.    Cockermouth     & 

Washington  Railw.  223 

Sands  c.  Sanders  148,  149 

Sargent  v.  Franklin  Ins.  Co.  115,  116, 

118,  145 
.  V.  Webster  84 

Sater  ».  B.  &  Mt.  PI.  Railw.  262 

Saunders,  ex  paHe  147 

Savin  v.  Hylake  Railw.  16 

Savings  Bank  v.  Davis  77 

Sawyer  v.  Xorthfield  538 

V.   Rut.    &  Bur.  Railw.  589, 
603 
Sayles  v.  Blane  125,  156 

Sayre  r.  Louisville  Union  Benevo- 
lent Association  88 
V.  North  W.  Turnpike  Co.       55 
Scadding  r.  Lorant  78 
Scaggs  r.  Bait.  &  Wash.  Railw.  465, 

674 
Schofield  p.  School  District  296 

School  Board  v.  People  659 

School     Directors      of     Bedford 

Borough  F.  Anderson  654 

Schuler  r.  Northern  L.  Railw.         254 


Schumieier  p.  St.  Paul  &  P.  Railw.  265 

Schuylkill  Co.  p.  Thobum  262 

Scott  p.  Avery  433,  434 

p.  Clark  666 

p.  Corporation  of  Liverpool  416 

p.  Eagle  Fire  Co.  80 

p.  P^bury  10 

p.  London  Dock  Co.  464 

p.  Morgan  626 

p.  Oakely  48 

p.  W.  &  R.  Railw.         465,  472 

Scottish   Northeastern    Railw.    p. 

Stewart  37,  48,  615,  639 

Scudderp.  Woodbridge  521,  523,  529 
Sea,  Fire  &  Life  Assurance  Soci- 
ety, Matter  of  171 
Searle  p.  Lachawanna  Railw.  292 
Seaver  v.  Boston  «&  Maine  R.  528,  555 
Seddon  p.  Connell  142 
Selma  &  Tenn.  R.  p.  Tipton  66,  1G4, 

188,  203 
Semmes  p.  Mayor  of  Columbus  581 
Semple  p.  London  &  Birmingham 

Railw.  246 

Seneca  Railw.  p.  Auburn  &  Roch. 

Railw.  305 

Seneca  Road  Co.  p.  Aub.  &  Roch. 

Railw.  ^         293,  298 

Senior  v.  Met.  Railw.  344 

Serendat  v.  Saisse  506 

Serrell    p.    Derbyshire    Staff.    & 

Wor.  J.  Railw.  569 

Sewall  p.  Boston  Water  Power        154 
Sewell  p.  Lancaster  Bank  117 

Seymour  v.  Maddox  519,  528 

V.  Sturgess  1()2 

Shamakin  Valley  Railw.  v.  Liver- 
more  248 
Sband  p.  Henderson  336 
Sharp  p.  Great  Western  Railw.       436 
Sharrod  r.  London  &  N.  W.  Railw. 

465,  511 
Shaw    p.    Boston    &    Worcester 

Railw.  543,  551 

p.  Fisher  132,  133,  134 

p.  Holland  132 

p.  Perkins  626 

P.Rowley  124 

p.  Spencer  153 

Shattuck  p.  Stoneham  B.  Railw.      278 

Shears  p.  Jacobs  563 

Shedd  p.  Troy  &  Boston  Railw.       101 

Sheffield,   A.    &    M.    Railw.    p. 

Woodcock  6,  9,  85,  120,  181 

Sheldon  p.  Hudson  River  Railw.      453 
Shepard  p.  Buffalo,  N.  Y.  &  Erie 

Railw.  471 

p.  New    York     &,    Erie 

Railw.  472 


TABLE    OF   CASES. 


Ixxxi 


Shepardson  r.  M.  &  B.  Railw.         283 

Sherman  ».  Mayor  of  New  York    417 

V.  New  York  Central  R.  600 

V.  Roch.  &  Sy.  Railw.  611, 

518 

V.  Vermont  Central  R.     411 

Shipley  v.  Mechanics'  Bank  644 

Shirley  v.  Ferrers  18,  45 

Shoemaker  c.   Goshen  Turnpike 

Co.  209 

Sboenberger  v.  Mulhollan       272,  863 
Shorter  ».  Smith  260 

Shortridge  v.  Bosanquet  114 

Shrewsbury  &  Binnin^hani  Railw. 
r.  London  &  Nortnwestem  R.  34, 
688,  591,  600,  611,  614 
r.  London  &  N.  W.  &  Shrop- 
shire Union  Railw.        688,  690 
Shrunk  r.  SchuylkiU  Nav.  Co.  231, 

304 
Shurtz  V.  S.  &  T.  Railw.  65,  66 

Sigfried  v.  Levan  126 

Silk  Manuf.  Co.  v.  CampbeU  665 

Sills  r.  Brown  554,  655 

Simpson  r.  Denison  445,  558,  587,  612 
V.  Lancaster  &  Carlisle 

Railw.  360 

V.  Lord  Howden  22,  34 

r.  Scottish  U.  Fire  &  Life 

Ins.  Co.  624 

V.  So.  Staff.  Waterworks 

Co.  234 

V.  Westminster  Palace 

Hotel  Co.  683 

Sims  0.  Commercial  Railw.  359 

Sinclair  v.  Pearson  511 

Sirrell  v.  Derbyshire,  Staffordshire, 

&  Wor.  J.  Railw.  570 

Sixth  Avenue  Railw.  v.  Kerr  313 

Skerratt   c.   North    StalFordshire 

Railw.  481 

Skip  V.  Eastern  Counties  Railw.    518, 
620,  528,  536 
Slater,  ex  parte  157 

V.  Emerson  409 

Slaymaker  p.  Gettysburg  Bank        112 
Sleath  p.  Wilson  511 

Small  r.  Herkimer  M.  &  H.  Co.     164 
Smart  r.  Guardians  of  the  Poor 

of  Westham  Union      696 
V.  Railway  283 

Smith  V.  Allison  392 

V.  Birmingham  Gas  Co.        612 
e.  Boston  299,  644 

r.  Boston  &  M.  Railw.         254 
c.  Commonwealth  627 

V.  Crocker  126 

r.  Eastern  Railw.  466 

V.  £rb  626 


Smith  V.  Great  Eastern  Railw.        517 
V.  Helmer  288 

V.  Hull  Glass  Co.  573 

V.  Ind.  &  HI.  Railw.  179 

».  Law.  78 

V.  London  &  St.  Katherine^s 

Dock  Co.  604 

V.  Maryland  824 

V.  McAdams  288 

V.  New   York    &    Harlem 

Railw.  520.  608 

V.  Pelah  451 

V.  Reese  River  Silver  Min- 
ing Co.  141 
Smyth,  ex  parte  667 
».  Darley  82 
Snodgrass  v.  Gavit  436 
Snow  V.  Housatonic  Railw.  618 
Snowden  v.  Davis  446 
Society  of  Practical  Knowledge  v. 

Abbott  110 

Solomons  v.  Lang  144 

Som.  &  Ken.  Rauw.  v.  Cushing  179 
Somerset  Canal  Co.  v.  Harcourt  360 
Soraerville  &  E.  Railw.  v.  Doughty  262, 

267 
Soper  V.  Buffalo  &  Roch.  Railw.  657 
South  Bay  Meadow  Dam.  Co.  v. 

Gray  108,  165,  199 

South  Carolina  Railw.,  ex  parte      391 
V.  Blake  350,  391 
South  Essex  Gas  Light  &  Coke 

Co.  in  re  688 

South  Staffordshire  Railw.  v.  Bum- 
side  166 
V.  Hall  371 
South  Wales  Railw.  ex  parte  366,  481 
South  Yorkshire  &  Goole  Railw. 

in  re  626 

South  Yorkshire  Railw.  v.  Great 

Northern  Railw.  689 

South  Yorkshire  &  River  Dun  Co. 

V.  Great  Northern  Railw.  588,  616 
S.  Wales  R.  Co.  v.  Richards  662,  663 
Southampton  Bridge  &  I.  Co.  v. 

Local  Board  of  Health  606 

Southeastern  Railw.  v.  Brodgen      422 
V.  European  &  Am.  Tel.  Co. 

401,  511 
r.  Queen  397 

Southmayd  r.  Ru^  116 

Southwestern  Railw.  v.  Coward  870 
Southwick  p.  Estes  608 

Spackman,  ex  parte  147,  660 

p.  Lattimore  16 

Sparks  o.  Liverpool  Waterworks  218 
Sparling  p.  Parker  111 

Sparrow   v.  Evansville   &  Craw- 

fordsville  Railw.      201 


Ixxxii 


TABLE  OP  CASES. 


Sparrow  r.  Oxford,  &c.  Railw,     234, 
352,353,858. 
Spartanburgh  &  Union  Railw.  r. 

De  Graffenreid  201 

Spear  v.  Crawford  164 

V.  Richardson  276 

Spear  &  Carlton  v.  Newell  685 

Spooner  v.  McConnell  324 

Spottiswoode's  Case  14 

Springfield  v.  Conn.  River  Railw.  236, 

242,  256,  298,  303 

Sprj'  V.  Emperor  446 

Squire  v.  Campbell  385 

St.  George  v.  Reddington  883 

St.  James's  Club,  in  re  13 

St.  John  V.  Eastern  Railw.  516 

V.  St.  John  46 

St.   Louis,    Alton    &   Terrehaute 

Railw.  V.  South  105 

St.  Louis  &  C.  Railw.  v.  Dalby      105 
St.  Louis  C.  Ct.  V.  Sparks  655 

St.  Luke's  Church  v.  Slack  656 

St.  Mar)''s  Church  59,  72 

St.  Thomas  Hospital  v.  Charing 

Cross  Railw.  354 

Stacy  r.  Vt.  Central  Railw.     238,  285 
Stahl  V.  Berger  126 

Stainbank  v.  Femley  140 

Stamps  V.  Bir.,  Wolv.,  &  Stour 

Valley  Railw.  360,  366 

Standish  r.  Mayor  of  Liverpool      365 
Stanhope's  Case  660 

Stanley  v.  Chester  &  Birkenhead 

Railw.  24 

r.  Stanley  138 

Stanton  v.  Wilson  203 

Stapley    v.   London,   B.   &    So. 

Coast  Railw.  641,  552 

Stark,  ex  parte  572 

Starr  v.  Child  298 

State  V.  A.  P.  Hunton  668 

V.  Ashley  656,  667 

r.  B.  &  O.  Railw.  234 

».  B.  C.  &  M.  Railw.     620,.  668 
V.  Bank  of  Louisiana  80 

V.  Boston,  Concord,  &  Mon- 
treal Railw.        87,  245,  656 
V.  Bradford  Village  670 

V.  Brown  666,  667 

V.  Chester  626 

V.  Comm.  of  Mansfield  391 

V.  Commercial  Bank  of  Man- 
chester 668 
V.  Common  Council  655 
».  County  Judge  642 
r.  Davenport  642 
V.  Dawson  71,  285 
V.  Digby  262 
V.  Directors  of  Bank  648 


State  V.  Franklin  Bank 

112 

r.  Garretson 

285 

V.  Goold 

104 

V.  Gorham 

539 

V.  Great  Works  MiH.  &  Man. 

Co.  512 

r.  Hartford  &  N.  Haven  R.  641, 
659 
r.  Hastings  626 

V.  Hessenkam  313 

r.  Holiday  644 

V.  Hudson  664 

r.  Jersey  City  661 

V.  Keokuk  642 

V.  Lynch  656,  659 

V.  McBride  667 

V.  Merry  667 

V.  Miller  264 

V.  Miss.  &c.  Railw.  666 

V.  Morris  &  Essex  Railw.  568 
V.  Norwalk  &  Danbury  Turn- 
pike Co.  391 
r.  Overton  98,  100 
r.  Rives  229,  253 
V.  Ross  106 
».  St.  Louis  P.  M.  &  Life 

Ins.  Co.  667 

V.  Thompson  101 

r.  Tudor  79 

V.  Turk  667 

JO.  Vermont  Central  Railw.     610 
V.  'WheeHng  Bridge  Co.  326 

V.  Wilmington     &     Manch. 

Railw.  693 

State  Fire  Ins.  Co.  617 

State  of  Marvland  r.  Baltimore  & 

Ohio  Railw'.  646 

Stearns  r.  Old  Colony  &  Fall  River 

Railw.  491 

Stears  v.  S.  Essex  Gras  Light  & 

Coke  Co.  683 

Steel  r.  Southeastern  Railw.  332,  603, 

505 
Steele  v.  Harmer  576 

r.  Midland  Railw.  855 

V.  N.  Met.  Railw.  4 

Steigenberger  v.  Carr  9 

Stein  r.  Ind.,  «&c.  Association  62 

Stephens  c.  De  Medina  129 

Stetson  V.  Faxon  299 

Stevens  v.  Rutland  &  Burlington 

Railw.  194 

r.  South  Devon  Railw.        76, 
691,  621 
St«wart  B.  Anglo-California  Grold 

Mining  Co.  218 

».  Cauty  129,  131 

r.  Hamilton  College  203 

V.  Raymond  Railw.  284 


TABLE   OF  CASES. 


Ixxxiii 


Stewart^s  Estate,  in  re  218 

Stikeman  v.  Dawson  192 

Stiles  r.  Western  Kailw.  411 

Stilphin  V.  Smith  91 

Stockbridge  ».  West  Stockbridge        3 
Stockton  &  Darlington  liailw.  r. 

Brown  235,  389 

Stockton  &  Hartlepool  Railw.  v. 

Leeds    &   Thirsk    &    Clarence 

liailws.  43 

Stoddard    r.    Onondaga    Annual 

Conference  67 

Stokes  r.  Grissell  395 

r.  Lebanon  &  Sparta  Turn- 
pike Co.  164 
Stone  r.  Cambridge                          242 
V.  Commercial  Railw.  336,  352, 
359 
Stoneham  Branch  Railw.  v. 

Gould  166,  176 

Stornifeltz  v.  Manor  Turnpike  Co.  286 
StralFon's  Executors,  ex  parte  114 

Strang  p.  Beloit  &  M.  liailw.  272,  278 
Strapley   r.    London    &    N.    W. 

Railw.  537 

Strasburg  Railw.  r.  Echternacht       39 
Stratford  &  M.  Railw.  v.  Stratton  176, 

179 
Straus  V.  Eagle  Ins.  Co.  183,  568 

Stray  v.  Russell  121 

Strong  V.  Ellsworth  10 

Strong,  Petitioner  626 

Stubbs  r.  Lister  214 

Stubley    r.    London    &  N.  W. 

Railw.  552 

Stucke  V.  Milw.  &  Miss.  Railw.      487 
Sturges  V.  Knapp  582 

Sturtevant  ».  Milw.,  Wat.,  &  B. 

Railw.  336 

Sullivan  v.  Philadelphia  &  R.  Railw.  485 
r.    Tuck  133 

Sunbury  &  Erie  Railw.  r.  Hum- 

niell  290 

Susquehannah  Canal  Co.  e.  Wright  231 

Sutton  V.  Clark  304,  462,  606 

r.  Louisville  264 

r.  Tatham  129 

Sutton  Harbor  Improvement  Co. 

r.  Hitchins  371 

Suydam  p.  Moore  466,  547 

Swan  p.  North  British  Australasian 

Co.  14 

Swansea  Harbor  Trustees,  m  re      382 
Swansea  Vale  Railw.  p.  Budd  216 

Swatara  Railw.  p.  Brune  190 

Sweeney  p.  Old  Colony  &  New- 
port Railw.  651 
Symonds  r.  City  of  Cincinnati  229, 

261 


T. 


Taff-Vale  Railway  p.  Nixon  422 

Taggart  r.  West  Alary  land  Railw.  110, 

176 
Talmadgc  p.  Rensselaer  &  Sara- 
toga Railw.  467 
Tanner  p.  Tanner  152 
Tar  River  Nav.  Co.  p.  Neal  164 
Tarrant  p.  Webb  519,  528 
Tate  p.  Ohio  &  Miss.  Railw.  308 
Tattersall  p.  Groote  433 
Taunton  p.  Royal  Ins.  Co.  618 
Taunton  &  South  Boston  Turnpike 

Co.  p.  Whiting  162 

Tawney  p.  Lynn  &  Ely  Railw.  360 
Tavler  p.  Great  Indian  Peninsula 

Ilailw.  147 

Taylor  p.  Chichester  &  Midhurst 

Railw.  48 

p.  Clemson  232,  390 

p.  County  Commissioners     270 
p.  Fletcher  183 

p.  Griswold  79 

p.  Hughes  116 

p.  Southeastern  Railw.        452 
p.  St.  Louis  304 

V.  Stray  131 

r.  York  &  N.  M.  Railw. 

in  re  362 

Tempest  p.  Kilner  111,132 

Tennant  p.  Goldwin  460,  462 

Tenney  p.  East  Warren  Lumber 

Co.  652 

Terre  Haute,  &c.  Railw.  p.  Smith  494 
Terry  p.  New  York  Central  Railw.  467 
Tew  p.  Harris  381 

Thames  Haven  Dock  &  Railw.  Co. 

p.  Hall  81,  349 

p.  Rose         81,  83,  86 
Thames  Steamboat  Co.  p.  Ilousa- 

tonic  Railw.  512 

Thames  Tunnel  p.  Sheld«n  118,  180 
Thayer  p.  St.  Louis,  Alton,  &c. 

Railw.  496 

V.  Vermont  Central  Railw. 

411,  412 
Tbicknesse  p.  Lancaster  Canal  Co.  374, 

651 

Thigpen  p.  Misa.  Central  Railw.     174 

Thomas  p.  Winchester  603 

Thompson,  ex  parte  626 

p.  Charnook  433 

p.  Grand  Gulf  Railw.     280, 

284 

V.  New  Orleans  &  Car- 

rolton  Railw.  505 

V.  New    York     &    II. 

Railw.  2.% 


Ixxxiv 


TABLE    OF   CASES. 


Thompson  v .  Thompson  111 

V.  West  Somerset Railw.  308 
Thome  v.  Taw  Vale  Railw.  3 

Thorpe  v.  Hughes  187 

V.  Rut.  &  Bur.  Railw.  53,  257 
Thumell  v.  Balbirnie  434 

Tilleard,  in  re  48 

Tillet  V.  Charing-Cross  Company  223, 

227 
Tillotson  V.  Hudson  River  Railw.  332 
Tilson  V.  Warwick  Gas  Light  Co.  652 
Timmons  v.  Central  Ohio  Railw.  624 
Tinsman  v.   Belvidere   Delaware 

Railw.  295 

Tippetts  V.  Walker  111 

Titcomb  v.  Fitchburg  Railw.  404 

Todd  V.  Taft  133 

Toledo,  &c.  Railw.  v.  Fowler  495 

Toledo  &  Wabash  Railw.  v.  Daniels  494 
V.  Thomas  494,  499 
Toledo  Bank  v.  Bond  65,  236 

Tombs  r.  Rochester  &  Syracuse 

Railw.  489 

Tomlinson  v.  Man.  &  Birm.  Railw.  234 
V.  Tomlinson  111 

Tonawanda  Railw.  v.  Hunger  467, 498 
Tooke,  ex  parte  148 

Toomey  v.  London,  Br.  &  So.  Coast 

Railw.  603 

Tower  V.  Prov.  &  Wor.  Railw.  467, 499 
Towle  V.  The  State  645 

Towns  V.  Cheshire  Railw.        465,  497 
Townsend  v.  Ash  111 

Townshend  v.  Susquehannah  T.  Co.  605 
Tracy  v.  Yates  188 

Trasicr.  Hartford  &  NewH.  Rail.  463 
Tremain  v.  Cohoes  Company  286 

Trenton    Water    Power    Co.    v. 

Chambers  267 

Troup,  in  re  617 

Trow  V.  Vermont  Central  Railw.  469, 

647 
Troy  r.  Chesliire  Railw.  298,  335 

Troy  &  Boston  Railw.  v.  Lee  262,  267 
».  Northern  Turnpike  Co. 

267,  272,  279,  293 
V.  Tibbitts  164,  189,  203 

e.  Warren  203 

Troy  &  Greenfield  Railw.  v.  New- 
ton 178 
Troy  &  Rutland  Railw.  r.  Kerr     164, 

189,  588 
Troy  T.  Co.  r.  McChesney  163 

Trueman  r.  Loder  130 

Trustees  r.  State  659 

Trustees  Swansea  Harbor,  in  re      383 
Tuckahoe  Canal  Co.  v.  Tuckahoe 

Railw.  286 

Tucker  v.  Seaman's  Aid  Society        61 


Tunney  v.  Midland  Railw.  525 

Tuohey  v.  Great  S.  &  W.  Railw.    339 
Tarquand  v.  Marshall  568 

Turner  v.  Sheffield  &  R.  RaUw.     287, 

335 

Turnpike  Co.  v.  Hosmer  •  391 

V.  Wallace  54 

Turnpike  Road  v.  Brosi  847 

Tyrrell  v.  WooUey  567 


U. 


U.  S.  e.  Arredondo  236 

V.  New  Bedford  Bridge  Co.  326 
Underhill  v.  New  York  &  Harlem 

Railw.  472 

r.  Saratoga   &    Wash. 
Railw.  220 

Underwood  v.  Bedford  &   Cam- 
bridge Railw.      353 
r.  Hart  411 

Union  Bank  v.  Knapp  215 

V.  Laird  116 

Union  Bank  of  Tennessee  v.  State  112 
Union  Locks  &  Canal  Co.  v.  Towne 

193 
Uniontown  v.  Commonwealth  642 

United  States  ».  N.  Bedford  Bridge 

Co.  324       I 

V.  Railway  Bridge 

Co.  230,  329 

r.  Robeson  434 

V.  Vaughan  116 

United  States  Bank  v.  Dandridge    410 

V.  Han-is  248,  252 

V.  Planters'  Bank  of 

Georgia  60 

Unity  Ins.  Co.  ».  Cram  68 

Unthank  v.  Henry  County  Tump. 

Co.  166 

UpfiU's  Case  13,  165 

Upton  V.  South  Reading  Railw.     261, 

273 
Utica  &  Schenectady  Railw.   v. 

Brinkerhoff  172,  203 

Utica  Bank  ».  Hillard  215 


V. 

Vail  V.  Morris  &  Essex  Railw.       269, 

271,  278 

Van  Wickle  v.  Railw.      238,  269,  278 

Van  Winkle  r.  C.  &  A.  Railw.        663 

Vandegrift  ».  Railw.  513 

r.  Rediker  468,  498,  508, 

547 


TABLE   OP   CASES. 


Ixxxv 


Yanderbilt  v.  Rensselaer  &  Sar. 

Railw.  484 

V.  Richmond  T.  Co.     611 
Vanderkar  r.  Rensselaer  &  Sar. 

Railw.  482,  498 

Vanflerwerker  r.  Vermont  Cen- 
tral Railw.  411 
Varick  r.  Edwards  136 
Varillat  r.  N.  O.  &  Car.  RaUw.  651 
Varrick  v.  Smith  229 
Vaughan  r.  TalT-Vale  Railw.  452 
Vaughn  ».  Co.  of  Gunmakers  635 
Vauxhall  Bridge  Co.  ».  Earl  of 

Spencer  17,  21,  46 

Vawter  r.  Ohio  &  Miss.  Railw.       192 

Veazie  v.  Mayo  222,  310 

V.  Penobscot  Railw.     311,  899 

Vermont  Central  Railw.  c.  Baxter  241, 

246,  589 
V.  Burlington  392 
V.  Clayes  203 

V.  Hills  221 

Vermont  &  Mass.  Railw.  r.  Fitch- 
burg  Railw.  607 
Vicksburg  &  Jackson   Railw.  r. 

Patton  468 

Vii'ksburg,  Shreveport,  &  Texas 

Railw.  r.  McKean  166, 173, 187,190 
Victory  v.  Fitzpatrick  335 

Vilas  r.  Milw.  &  Miss.  Railw.  222,  337 
Vinal  V.  Dorchester  588 

Violet  r.  Simpson  550 

Visscher  v.  Hudson  River  Railw.     368 
Von  Schmidt  r.  Huntington  74 

Vose  V.  Grant  170 

Vt.  &  Canada  Railw.  r.  Vt.  Cen- 
tral Railw.  283 


W. 

W.  &  L.  RaUw.  V.  Kearney  404 

V.  Washington      278 
W.  N.  W.  Co.  t>.  Hawksford  15 

Wadhams  v.  Lackawanna  &  Blooms. 

Railw.  284 

Wainwright  ».  Ramsden  346 

Waitnian,  ex  parte  151 

Wakefield  r.  Conn.  &  Pass.  River 

Railw.  643 

Waldo  V.  Chicago,  St.  Paul,  &  Fond 

du  Lac  Railw.  233 

V.  Martin  677 

Waldron  c.  Portland  S.  &  P.  Railw.  467 

V.  RensMelaer      &     Sar. 

Railw.  466 

Walker,  ex  parte  151,  683 

».  Bartlett  125,  136,  138 

V.  Boiling  523 


Walker  r.  Boston  &  Maine  Railw.  231. 

267,  270,  325 

V.  Devereaux  66,  169 

V.  Eastern  Counties  Railw.  223 

V.  Great'Western  Railw.       517 

r.  London  &  Bl.  Railw.      369, 

643 

V.  Milne  111 

V.  Mobile  &  Ohio  Railw.       174 

V.  Ware  lUilw.  239 

Walker's  Case  116 

Wallingford  Manufacturing  Co.  v. 

Fox  10 

Walstab  v.  Spottiswoode  12 

Walter  v.  Belding  627 

Wansbeck  Railw.  in  re  406 

Warburton     v.     Great    Western 

Railw.  630 

Ward  V.  Griswoldville  Manuf.  Co.  164 

V.  Londesborough  12 

V.  Ivowndes  630,  642,  647 

r.  Southeastern  Railw.  122 

Ware  v.  Grand  Junction  Water  Co. 

74,  194 
V.  Regents'  Canal  Co.  289,  342. 
381 
Waring  r.  Manch.,  Sheffield,  &  L. 

Railw.  422 

Warner  v.  Erie  Railw.  519 

V.  Mower  78 

Warren  v.  State  811 

Warren  Railw.  v.  State  399 

Warring  r.  Williams  126 

Wash.  &  Bait.  T.  Road  Co.  r.  State 

671 
Waterbury  v.  Hartford,  Prov.  & 

F.  Railw.  645 

Waterford,  Wexford,  &  W.  Railw. 
V.  Dalbiac  176 

V.  Pidcock  186 
Waterman  v.  Conn.  &  Pass.  River 

liailw.  295,  344 

Water  Power  Co.  r.  Chambers        219 
Watennan  v.  Troy  &  Greenfield 

Railw.  207 

Waters  v.  Moss  477 

V.  Quimby  615 

Watson  e.  Reid  225 

Watkins  c.  Great  Northern  Railw.  242, 

834,  335 
Watts  V.  Porter  171 

p.  Salter  12,"  13 

r.  Watts  136 

Webb  r.  Direct  London  &  Ports- 
mouth Railw.      26,  27,  35, 
37,  38.  89 
V.  Man.  &  Leeds  Railw.      234, 
241,  360,  5.'>4 
Webber  r.  Eastern  Railw.  274 


Ixxxvi 


TABLE   OF  CASES. 


Weeden  v.  Lake  Erie  &  Mad  River 

Railw.  207 

Welcome  v.  Leeds  640 

Weld  V.  London  &  Southwestern 

Railw.         •  9,  393 

V.  Southwestern  Railw.  Co.  357 
Welland  Railw.  v.  Berrie  168 

Welles  V.  Cowles  111 

Wells  r.  Howell  497 

r.  Som.  &  Ken.  Railw.  232 

West  Chester  Railw.  v.  Miles  107 

West  Cornwall  R.  v.  Mowatt  156 

West  London  Railw.  ».  London  & 

N.  W.  Railw.  607 

West  Philadelphia  Canal  Co.  v. 

Innes  182,  185 

West  River  Bridge  ».  Dix        255,  258 
Western  Maryland  Railw.  ».  Ow- 

ings  336 

Western  Railw.  ».  Babcock  225 

Weston  r.  Bennett  410 

V.  Foster  250 

Westropp  V.  Solomon  128 

Wetraore  v.  Story  305 

Weyant  v.  N.  Y.  &  Hariem  Railw.  523 
Whaalan  v.  M.  R.  &  Lake  Erie 

Railw.  521,  529 

Wheeler  v.  Roch.  &  Sy.  Railw.     251, 

290,  483 
Wheelock  v.  Moulton  11,  112 

V.  Young  &  Pratt  241 

Whipple  V.  Walpole  275 

Whitaker  v.  Boston  &  Maine  Railw.  644 
Whitcomb  v.  Vermont  Central 

Railw.  218,  295 

White  V.  Boston  &  Prov.  Railw.     335 
r.  Brown  465 

V.  Chariotte  &  S.  C.  Railw.  261 
V.  Concord  Railw.  276,  484 

V.  Fitchburg  Railw.  273 

V.  Quincy  404 

r.  South  Shore  Railw.  290 

V.  Vermont  &  Mass.  Railw.  127 
White's  Casu  635 

White  Mountain  Railw.  v.  East- 
man 84,  159,  165,  177 
White  River  Bank,  Matter  of  656 
White  River  Turnpike  Co.  v.  Ver- 
mont Central  Railw.  255,  256,  298 
Whitefield  v.  Southeast  Railw.  517 
Whitehouse  v.  Androscoggin  Railw. 

286,  288 

V.  Fellowes  605 

Whiteman  v.  Wilm.  &  Sus.  Railw.  509 

Whitfield  V.  Southeastern  Railw.    514, 

667 
p.  Zelnor  408 

Whitman  v.  Boston  &  Maine  Railw. 

219,  222,  264,  271 


Whitmarsh  Township  r.  Phil., Ger., 

&  N.  Railw.  644 

Whitney  v.  At.  &  St.  L.  Railw.  488 
Whittier  ».  Portland  &  Ken.  R.  295 
Whitwell  V.  Warner  15,  656 

Wiggett  V.  Fox  623,  629 

Wiffgin  V.  Free  Will  Baptist  So- 
ciety 77 
Wight  r.  Shelby  Railw.  160,  186,  189 
Wigmore  r.  Jay  618,  528 
Wiley  &  Moor  126 
Wilkins  v.  Roebuck  564 
Wilkinson    v.     Anglo  -  California 

Gold  Co.  145 

V.     Loyd       113,  120,  131 
Willard  v.  Newbury  638 

Willcocks,  ex  parte  84 

Willey  V.  Southeastern  Railw.         366 
Williams  v.  Androscoggin  &  Ken- 
nebec Railw.  409 
V.  Archer  132 
r.  Chester  &  Holyhead 

Railw.  410 

V.  Great  Western  Railw.  92 
r.  Hartford  &  New  Ha- 
ven Railw.  238 
r.  Jones  506,  509,  651 
V.  Judge  of  County  Ct.  659 
V.  Michigan  Central  R.  467, 
468,  498 
V.  Natural  Bridge  Co.  299 
V.  New  Albany  &  Salem 

Railw.  490 

V.  New    York     Central 

Railw.      229,  298,  299, 

805,  308,  487 

».  Pigott  14 

c.  South  Wales  Railw.     360 

V.  St.  George's  Harbor 

Co.  11,  43 

V.  Wilcox  402 

Willing  V.  Baltimore  Railw.  278 

Wills  V.  Bridge  123,  125 

V.  Murrav  78,  83 

Willyard  v.  Hamilton  282 

Wilmington  &  Manchester  Railw. 

r.  Saunders  70 

Wilmington  &  Raleigh  Railw.  v. 

Robeson  173 

Wilmot  V.  Corporation  of  Coven- 
try 575 
Wilson  r.  .^tna  Insurance  Co.       434 
r.  Anderson  3 
p.  Blackbird  Creek  Marsh 

Co.  324,  326 

p.  Cunningham  3,  650 

p.  Goodman  669 

p.  Keating  158 

p.  Merry  620 


TABLE   OP   CASES. 


Ixxxvii 


Wilson  r.  Mien  .  668 

V.  Railway  Co.  470 

e.  West  Hartlepool  Railw. 

Co.  666, 601 

V.  Wilson  86 

V.  York  &  Md.  Railw.         418 

Win.  &  St.  Peters  R.  v.  Denman  262, 

266 
V.  Waldron  264 
Winch  V.  Birkenhead,  L.  &  C. 

Railw.  691 

Winchester,  Bishop  of,  v.  Midhants 

Railw.  367 

Winter  r.  Muscogee  Railw.     193,  196 
Winterbottom  r.  Wright  603 

Witman  v.  Schlatter  15 

Witter  V.  Miss.  O.  &  R.  Railw.       392 
Wolfe  V.  Covington  &  Lexington 

Railw.  294,  298 

Wolverhampton    N.    W.    Co.   v. 

Hawksford  161 

Wood  r.  Auburn  &  Roch.  Railw.    563 
r.  Duke  of  Argyll  9 

r.  Dummer  169 

r.  Epsom  &  L.  Railw.  358 

©.  McCann  678 

V.  North  Staffordshire 

Railw. 
e.  Stourbridge  Railw. 
r.  Vermont  Central  Railw. 
Woodfin  r.  Insurance  Co. 
Woodfolk  p.  Nashv.  &  C.  Railw. 


405 
344 
442 
92 
260, 
263,  264 
506 
623,  662 
126 


Woodman  t.  Joiner 

Woodstock  p.  Gallup 

Wooley  r.  Constant 

Woolson  r.  Northern  Railw.  497 

Wootton's  Estate  848 

Worcester  &  Nashua  Railw.  v. 

Hinds  176 

Worcester  Turnpike  r.  Willard  162 

Works  p.  Junction  Railw.  829 

Wormwell  r.  Hailstone  652 

Worrall  p.  Judson  138 

Worsley  p.  South  Devon  Railw.  857 

Wright  r.  Coster  304 

p.  Fawcett  626 

p.  Gossett  492 


Wrighte.Ind.  &c.  Railw.  499 

t.  N.  Y.  Central  Railw.     618, 

619,  528,  529,  632 

e.  Petrie  170 

V.  Scott  828 

V.  Warren  151 

p.  Wilcox  608 

Wyatt  p.  Great  W.  Railw.  641 

Wycombe  Railw.  p.  Donnington 

Hospital  225 

Wyman  v.   Lexington    &    West 

Cambridge  Railw.     272 
0.   Penn.  &  Ken.  Railw. 
WjTin  p.  Alford 
p.  Allard 

p.  Shropshire  Union  Railw. 
&  Canal 
Wynne  p.  Price 
Wynstanley  p.  Lee 
Wyrley  Nav.  p.  Bradley 


494 
548 
647 

621 

134,  138 

337 

296 


Y. 

Yarborough  p.  Bank  of  England    508 
Yeizer,  Case  of  290 

York  &  Cumberland  R.  p.  Pratt     176 
York  &  Maryland  Line  Railw.  p. 

Winans  689 

York  &  N.  Midland  R.  p.  Milner   650 

p.  Reg.     630, 

639 

Young  p.  Harrison  282 

p.  N.  Y.  Central  Railw.       504 

V.  Yarmouth  638 


Z. 


Zabriskie  p.  C.  C.  &  C.  Railw.   68, 

78,  667,  663 

r.  Jersey  City  &  Bergen 

Railw.  312 

Zack  V.  Penn.  Railw.  266 

Zimmerman  p.  Union  Canal  Co.    231, 

283,  804 


ANALYTICAL  INDEX  OF  APPENDIX  OF  CASES. 


BEPORTED  SINCE  THE  EDITION   WKST   TO   PRESS. 


Corporations. 

PAOB 

Receivers  appointed  to  close  up  when  same  are  insolvent 675 

Commissioners  appointed  by  special  act  of  the  legislature  to  arrange  con- 
nections between  different  companies 676 

Right  of  owner  of  shares  to  demand  registry  of  transfer 675 

Costs  of  litigation  when  properly  chargeable  to  company 676 

Transfer  of  shares  as  collateral  sfecurity 676 

Specific  contract  for  sale  of  shares 676 

Right  to  inspect  entries  in  books  of  company ~ 676 

E.MINENT  Domain. 

Location  of  railway  confirmed  by  statute 676 

Difficulty  of  access 677 

Company  when  liable  in  ejectment 677 

Relief  by  injunction  for  nuisance  in  navigable  highway 677 

Notice  to  take  land 677 

Covenants  against  building  upon  adjoining  lands 677 

Extent  of  lien  for  price  of  land  taken  by  railway  company 677 

May  take  land  for  substituted  road,  even  when  not  strictly  indispensable    .  678 

Extent  of  powers  of  company  in  building  branches  and  new  lines     .     .     .  678 

When  assessment  of  land  damages  to  be  set  aside 679 

The  interest  of  a  railway  company,  laid  in  the  streets  of  a  city,  in  such 

streets 679 

Injuries  to  land  affecting  easements  therein,  not  taking  of  land    ....  679 

Responsibility  of  conjpauy  for  legal  use  of  franchise 680 

Company  cannot  assign  powers 680 

Effect  of  ac(iuiescence  on  the  part  of  railway  company 681 

Time  and  mode  of  exercising  compulsory  powers  against  land- owners  .     .  681 

Concessions  by  natural  persons  to  public  company  construed  strictly     .     .  682 

Right  to  enter  upon  lands  for  preliminary  surveys 682 

Rule  of  estimating  land  damages 682 

Contracts 683 

Rf:striction8  in  regard  to  Tolm 683 

Fires  caused  by  Sparks  from  Companies'  Engines 683 

Injuries  to  Domestic  Animals 686 

Cattle  suffered  to  go  at  large  by  law 686 

Cattle,  estrays,  &c 686 

9 


XC  ANALYTICAL   INDEX   OP   APPENDIX   OF   CASES. 

Fences 686 

Company  not  bound  to  fence  against  cattle  trespassing 687 

Injury  by  Fellow-servants  or  Machinery 687 

Responsibility  of  master  for  tortious  acts  of  seryant 688 

Injuries  in  the  nature  of  Touts 688 

Directors. 

Directors  responsible  for  the  authority  they  assume 691 

Directors  when  responsible  for  the  act  of  co-directors 691 

Power  of  directors  and  duty  of  courts  in  controlling  their  action ....  691 

The  duty  of  the  directors  to  serve  the  interests  of  the  company    ....  692 
Directors  personally  responsible  to  refund  money  expended  by  them  in 

"  rigging  the  market " 693 

Mandamus 693 


TABLE    OF   CASES    OF    APPENDIX    OF   CASES. 


A. 

Arnold  r.  Hudson  River  Railw.       679 
Attorney  Creneral  v.  Earl  of  Lons- 
dale 677 


B. 


Bailey  v.  De  Crespigney  677 

Bait.  &  Ohio  Railw.  v.  Bahrs  690 

V.  Breinig  690 

Bannon  v.  Bait.  &  Ohio  Railw.  690 

Belmont  t?.  Erie  Railw.  691 

Boyle  r.  Phil.  &  Reading  Railw.  683 


C. 


Cadmus  r.  Central  Railw.  679 

Card  V.  N.  Y.  &  Harlem  Railw.  685 
Chicago  &  Alton  Railw.  p.  Utley  686, 

687 
Cleveland  &  Pittsburgh  Railw.  v. 

Speer  680 

Col.  Bank  of  Australasias.  Cherry, 

&c.  691 

Commonwealth  r.  Eagle  Ins.  Co.  675 
Cook  r.  Met.  Railw.  690 


Drake  v.  FhU.  &  Erie  Railw. 


E. 


687 


686 


Eames  e.  Salem  &  Lowell  Railw 
Eastern  Railw.    r.   Concord  & 

Portsmouth  Railw.  676 

East  Penn.  Railw.  v.  Schollenber- 

ger  682 

Edgerton  v.  N.  Y.  &  H.  Railw.      690 
Enright  p.  San  F.  &  San  J.  Railw. 

686,  687 
Ernst  V.  Hudson  River  Railw.  690 

Eyton  V.  Denb.  R.  &  C.  RaUw.      678 


F. 


Femow  p.  Dubuque  &  So.  West. 

Railw.  687 

Flint  &  Pere  M.  Railw.  p.  Dewey  692 
Fox  p.  Western  Pacific  Railw.  682 

Frankford  &  Bristol  Turnpike  p. 

Phil.  &  Tren.  Railw.  684 


G. 


Graham  p.   Columbus  &  Ind.  C. 

Railw.  677 

Great  Western  RaUw.  p.  Hanks      686 


H. 


Hannibal  &  St.  Jo.  Railw.  p.  Ken- 

ney  685 

Hanover  Railw.  p.  Coyle  689 

Harrison,  Adm'x,  p.  Central  Railw. 

688 
Hawkins  p.  Maltby  676 

Heyl  p.  Phil.,  W.  &  B.  Railw.        681 
Hill  p.  Portland  &  Roch.  Railw.      688 
Hornstcin   p.   Atlantic  &  Great 
Western  Railw.  682 


I. 


HI.  Cent.  Railw.  p.  Whalen  687 

Ind.,  P.  &  C.  Railw.  p.  Marshall    686 


J. 


Joint  Stock  Discount  Co.  p.  Brown  691 


Lackawanna  &  Blooms.  Railw.  p. 

Doak  684 

Lamb  p.  North  London  Railw.       678 


XCll 


TABLE   OP  CASES   OF   APPENDIX  OP   CASES. 


Land  Credit  Co.  of  Ireland  v.  Lord 

Fermoy  693 

Langton  v.  Waite  676 

Lehey  v.  Hudson  River  Railw.         690 
Louisville,  &c.  Railw.  v.  State        693 


M. 

Maxted  v.  Paine  676 

Mayberry  v.  Concord  Railw.  687 
Mich  So.  &  North  Ind.  Railw.  v. 

Fisher  685 

Morgan  v.  Met.  Railw.  677 
Morris  &  Essex  Railw.  v.  Central 

Railw.  678 


N. 


N.  Y.  &  H.  Railw.  v.  Forty-second 

St.  &  G.  S.  F.  Railw.  679 

Neill  V.  Midland  Railw.  688 


O. 


Ottoman  Co.  v.  Farley  693 


Pell  V.  Northampton  &  B.  Railw.   677 
People  V.  Hatch  693 

Perley  v.  Eastern  Railw,  683 

Ph.,  W.   &  Baltimore  Railw.  v. 

Kerr  689 

Phil,,  Wil.,  &  Bal.  Railw.  v.  Wil- 
liams 681 
Pittsburgh,  Ft.  Wayne  &  Chicago 

Railw.  V.  Devinney        688 

V.  Dunn  690 

V.  Gilleland  680 

Price  V.  Denb.  R.  &  C.  Railw.        676 

V.  N.  J.  Railw.  &  Transp. 

Co.  685 


R. 


Rayner,  ex  parte  676 

Reg.  V.  Tarn  worth  676 


S.,  F.,  A.  &  S,  Railw,  v.  Cald- 
well 682 
Salem  v.  Eastern  Railw,  677 
Schwartz  v.  Hudson  River  Railw.  690 
Shauck  V.  Northern  Cent.  Railw,  688 
Shepherd  v.  Buffalo,  &c.  Railw,  686 
Smith  &  Co.,  Be  675 
Snyder  v.  Penn,  Railw,  688^ 
Stewart  &  Foltz's  Appeal  680 
Storey  v.  Ashton  688 


Toledo,  P.  &  W.  Railw.  v.  Arnold 

686 

V.  Rumbold  686 

Tracy  v.  Troy  &  Boston  Railw,      686 


U, 


Unangst's  Appeal 


682 


W. 

Warner  v.  Erie  Railw.  688 

Waud,  Be  676 

Weger  v.  Penn.  Railw.  688 

Western  Penn.  Railw.  v.  Hill  677 

Weston's  Case  675 
Wilcox  V.   Rome   &  Watertown 

Railw.  689 

Wooliey  V.  North  London  Railw.  676 


THE   LAW   OF   RAILAYAYS. 


•CHAPTER    I. 


INTRODUCTION. 


1.  Origin  of  railways  in  England.  \  4.  Railuxofs  in  America,  public  grants. 

2.  First   built  upon  ontfs  own  land,  or  by  5.  Use  of  steam  power  on  railways. 

special  license  from  the  owner.  i  6.  The  franchise  of  a  railway  not  necessarily 

8.   Questions  in  regard  to  private  railways.  \  corporate,  nor  unassignable. 

§  1.  1.  Although  some  of  the  Roman  roads,  like  the  Appian 
Way,  were  a  somewhat  near  approach  to  the  modern  railway, 
being  formed  into  a  continuous  plane  surface,  by  means  of  blocks 
of  stone  fitted  closely  together,  yet  they  were,  in  the  principle  of 
construction  and  operation,  essentially  different  from  railways. 
The  idea  of  a  distinct  track,  for  the  wheels  of  carriages,  does  not 
seem  to  have  been  reduced  to  practice  until  late  in  the  seventeenth 
century.  In  1676,  some  account  is  given  of  the  transportation  of 
coals  near  Newcastle,  upon  the  river  Tyne,  upon  a  very  imperfect 
railway,  by  means  of  rude  carriages,  whose  wheels  ran  upon  some 
kind  of  rails  of  timber.*  About  one  hundred  years  afterwards,  an 
iron  railway  is  said  to  have  been  constructed  and  put  in  operation  at 
the  colliery  near  Sheffield.  From  this  time  they  were  put  into  very 
extensive  use,  for  conveying  coal,  stone,  and  other  like  substances, 
short  distances,  in  order  to  reach  navigable  waters,  and  sometimes 
near  the  cities,  where  large  quantities  of  stone  were  requisite  for 
building  purposes. 

*  Roger  North's  Life  of  Lord  Keeper  North,  vol.  2,  p.  281 ;  Ency.  Americana, 
Art.  Railway,  vol.  10,  p.  478.  And  in  all  the  mediseval  towns  in  Europe,  we 
notice  double  granite  flagging,  along  the  streets,  for  the  wheels  of  carriages. 
And  in  the  main  street  in  Milan,  and  some  other  Italian  towns,  there  are  double 
tracks  of  this  kind  for  carriages  to  pass  in  opposite  directions.  These  granite 
blocks  in  the  streets,  for  the  wheels  of  carriages,  are  seen  in  Canterbury  and  in 
York,  England ;  and  in  most  of  the  Italian  cities.  But  they  seem  never  to  have 
suggested  the  idea  of  railways. 

1  'l 


ifi  INTRODUCTION.  CH.  I. 

2.  These  railways,  built  chiefly  by  the  owners  of  coal-mines  *  and 
stone-quarries,  either  upon  their  own  land  or  by  special  license, 
called  way-leave,  upon  the  land  of  others,  had  become  numerous 
long  before  the  application  of  steam  power  to  railway  transportation. 

3.  Some  few  questions  in  regard  to  the  use  of  these  railways,  or 
tramways,  at  common  law,  have  arisen  in  the  English  courts.^ 
But  as  no  such  railways  exist  in  this  country,  it  would  scarcel^Lbe 
expected  we  should  here  more  than  allude  to  such  cases.^ 

•  Walford  on  Railways,  2 ;  Keppell  ».  Bailey,  2  My.  &  K.  517 ;  Hemingway 
V.  Fernandes,  13  Simons,  228.  These  cases  seem  to  establish  the  rule,  that  a 
covenant  to  erect  a  railway  across  the  land  of  another,  and  to  use  the  same 
exclusively  for  a  given  transportation,  is  binding  upon  the  assignees  of  the 
interest. 

But  a  mere  covenant  to  use  an  adjoining  railway,  and  pay  a  specified  toll, 
does  not  run  with  the  land  then  used  by  the  covenanter,  and  from  which  he 
derives  the  material  transported.     Id. 

'  Walford,  3-10.  The  points  chiefly  discussed  in  the  reported  cases  in  refer- 
ence to  private  railways  and  railways  at  common  law,  are :  — 

1.  That  these  way-leaves,  or  reservations,  by  which  one  man  has  the  right  to 
build  a  railway  upon  the  land  of  others,  or  in  the  rightful  occupation  of  others, 
are  not  to  be  limited  to  the  kind  of  railway  in  use  at  the  date  of  the  reservation 
or  grant,  but  will  justify  the  building  of  a  railway,  suitable  and  convenient  for 
the  use  for  which  the  reservation  or  grant  is  made,  and  with  all  such  needful  or 
useful  improvements,  as  the  progress  and  improvements  of  art  and  science  will 
enable  the  grantee  to  avail  himself  of.  Dand».  Kingscote,  2  Railw.  C.  27  ;  s.  c. 
6  M.  &  W.  174.  Hence  it  was  considered  that  such  railways  might,  upon  the 
general  application  of  steam  power  to  railways,  adopt  that  as  an  improve- 
ment, coming  fairly  within  the  contemplated  use  of  their  grant  or  reservation, 
although  wholly  unknown  at  the  date  of  their  grant.  Bishop  r.  North,  3  Railw. 
C.  459  ;  8.  c.  11  M.  &  W.  429. 

2.  That  this  will  not  justify  the  grantee  of  a  way-leave  for  a  railway,  for  a 
special  purpose,  to  erect  one  for  general  purposes  of  transporting  merchandise 
and  passengers.  Dand  v.  Kingscote,  2  Railw.  C.  27  ;  s.  c.  6  M.  &  W.  174.  Far- 
row V.  Vansittart,  1  Railw.  C.  602 ;  Durham  &  Sunderland  R.  v.  Walker,  3  Railw. 
C.  36 ;  8.  c.  2  Q.  B.  940.  In  this  last  case,  which  was  a  decision  of  the  Exchequer 
Chamber,  the  way-leave  was  retained  by  the  landlord  in  leasing  the  land,  and  the 
court  say,  it  is  not  an  exception,  for  it  is  not  parcel  of  the  thing  granted,  and 
it  is  not  a  reservation,  as  it  did  not  issue  out  of  the  thing  granted,  but  it  is  an 
easement,  newly  created,  by  way  of  grant,  from  the  lessee.  And  that  it  was 
to  be  presumed  the  deed  was  executed  by  both  parties,  lessor  and  lessee. 

But  it  was  held,  that  where,  by  a  canal  act,  (32  Greo.  3,  c.  100,  §  54,)  the  pro- 
prietors of  coal-mines,  within  certain  parishes,  are  empowered  to  make  railways 
to  convey  coal  over  the  land  of  others,  by  paying  or  tendering  satisfaction,  that 
this  power  was  not  limited  to  such  persons  as  were  the  proprietors,  at  the  date 
of  the  act,  but  extended  to  subsequent  proprietors.  Bishop  v.  North,  3  Railw. 
C.  459  ;  8.  c.  11  M.  &  W.  429. 
*2 


§  1.  INTRODUCTION.  8 

*  4.  All  railways  and  other  similar  corporations  in  thi«  country 
exist,  or  are  presumed  to  have  originally  existed,  by  means 
of  an  express  grant  from  the  legislative  power  of  the  state  or 
sovereignty.* 

5.  The  first  use  of  locomotive  engines  upon  railways  for  pur- 
poses of  general  transportation  does  not  date  further  back  than 
October,  1829 ;  and  all  the  railways  in  tliis  country,  with  one  or 
two  exceptions,  have  been  built  since  that  date.* 

3.  That  If  the  railway  was  such  an  one  as  the  company,  at  the  time  when  it 
was  made,  might  lawfully  make,  for  the  purposes  for  which,  when  made,  they 
might  lawfully  use  it,  the  plaintiff,  as  reversioner,  had  no  ground  of  complaint, 
by  reason  of  the  intention  of  the  company  to  use  it  for  other  purposes,  for  which 
they  had  no  right  to  use  it,  until  such  intentions  were  actually  carried  into  effect. 
Durham  &  Sunderland  R.  r.  Walker,  8  Railw.  C.  86 ;  8.  C.  2  Q.  B.  940. 

But  where  other  parties  have  acquired  the  right  to  use  a  railway  originally 
erected  by  private  enterprise  and  for  private  purposes,  the  English  courts  at  an 
early  day  restrained  the  owners  of  the  railway  by  mandamus  from  taking  up 
their  track,  and  required  them  to  maintain  it  in  proper  condition  for  public 
use.  Rex  r.  Severn  R.  2  B«  &  Aid.  646.  But  see  Thome  v.  Taw  Vale  R.  18 
Beavan,  10. 

4.  That  such  way-leaves,  for  the  erection  and  use  of  railways  upon  the  land 
of  others,  may  exist  by  express  contract ;  by  presumption  or  prescription ;  from 
necessity,  as  accessory  to  other  grants ;  and  by  acquiescence,  short  of  the  limit 
of  prescription,  Barnard  v.  Wallis,  2  Railw.  C.  162 ;  8.  c.  1  Cr.  &  Ph.  85 ;  Mon- 
mouth Canal  Co.  ».  Harford,  1  C.  M.  &  R.  614. 

These  railways,  at  common  law  and  by  contract,  impose  certain  burdens  upon 
the  proprietors,  as  the  payment  of  rent  sometimes  for  the  use  of  the  land,  tenant^s 
damages,  and  the  keeping  their  roads  in  repair,  so  as  not  to  do  damage  to  the 
occupiers  of  the  adjoining  lands.  Wilson  v.  Anderson,  1  Car.  &  K.  544 ;  Wal- 
ford,  supra. 

*  2  Kent,  Comm.  276,  277;  Stockbridge  v.  West  Stockbridge,  12  Mass. 
400;  Hagerstown  Turnpike  Co.  r.  Creeger,  5  liar.  &  J.  122 ;  Greene  v.  Dennis, 
6  Conn.  292,  302,  Hosmer  Ch.  J. ;  Franklin  Bridge  Co.  v.  Wood,  14  Ga. 
80.  But  from  the  case  of  Wilson  r.  Cunningham,  3  California  241,  it  seems 
that  the  municipal  authorities  of  San  Francisco  did  assume  to  grant  a  private 
railway  within  the  limits  of  the  city.  The  court  held  the  proprietor  liable 
for  the  slightest  negligence  in  its  use,  whereby  third  parties  were  injured. 
Post,  §  250. 

*  The  celebrated  trial  of  locomotive  engines  upon  the  Liverpool  and  Man- 
chester Railway,  for  the  purpose  of  determining  the  relative  advantage  of 
stationary  and  locomotive  power  upon  such  roads,  and  which  resulted  in  favor 
of  the  latter,  was  had  in  October,  1829.  The  Quincy  Railway,  for  the  trans- 
portation of  granite  solely,  by  horse  power,  was  constructed  about  two  years 
before  this.  But  the  Boston  and  Lowell  Railway,  one  of  the  first  railways  in  this 
country  for  general  transportation  of  passengers  and  merchandise  by  the  use  of 
steam  power  and  locomotive  engines,  was  incorporated  in  June,  1830.    And  rail- 

•8 


4  INTRODUCTION.  CH.  I. 

*  6.  There  is  nothing  in  the  prerogative  right  of  maintaining  and 
operating  a  railway  and  taking  tolls  thereon  which  is  necessarily 
of  a  corporate  character,  or  which  might  not,  with  perfect  propriety, 
belong  to,  or  be  exercised  by,  natural  persons,  or  which  in  its 
nature  may  not  be  regarded  as  assignable.*  n 

ways  for  puq)oses  of  general  traffic  were  constructed  about  the  same  date  in  most 
of  Ihe  older  States,  and  very  soon  throughout  the  country. 

•  Bennett,  J.,  in  Bank  of  Middlebury  v.  Edgerton,  30  Vt.  182. 

•4 


PRELIMINABT  ASSOCIATIONS. 


•CHAPTER    II. 


PUBLIC   RAILWAYS   AS   CORPORATIONS.  —  PRELIMINARY   ASSOCIATIONS. 


SECTION   L 


Mode  of  instituting  Railway  Projects. 


1.  SubtcrOier^  associations  in  England. 

2.  SubscrAers  bound  bjf  subsequent  charter. 
8.   Issue  and  registry  of  scrip  certificates. 

4.    Original  subscriber  liable  to  unregistered 

purchaser. 
6.   Holders  of  scrip  entitled  to  registry. 
6.   Preliminary  associations  not  common  in 

this  country. 


7.  Petitioners  far  incorporation  Jile  plans 

and  surveys. 

8.  Present  English  statutes. 

9.  Preliminary  Associations  may  be  regis- 

tered. 
10.   Not  now  held  responsible  as  partners  in 
England. 


§  2.  1.  The  mode  of  instituting  railway  enterprises,  in  England, 
is  more  formal  and  essentially  different,  from  that  adopted  in  most 
of  the  American  States.  There  the  promoters  usually  associate 
under  two  provisional  deeds,  the  one  called  a  "  Subscribers'  Agree- 
ment," and  the  other  a  "  Subscription,  or  Parliamentary  Contract," 
which  are  expected  only  to  serve  as  the  basis  of  a  temporary  organ- 
ization till  the  charter  is  obtained.  This  is  specifically  and  often 
in  detail  to  some  extent  provided  for,  in  the  subscribers'  agreement. 
A  board  of  provisional  directors  is  provided  to  carry  forward  the 
enterprise,  whose  powers  are  defined  in  the  subscribers'  agreement 
or  deed  of  association,  and  whose  acts  will  not  bind  the  members 
unless  strictly  within  the  powers  conferred  by  the  deed. 

2.  Under  this  form  of  association,  the  subscribers  are  bound  by 
the  act  obtained,  if  within  the  powers  conferred  by  the  deed,  even 
where  it  involves  the  purchase  of  canal,  and  other  property  by  the 
company.^  And  courts  of  equity  often  interfere  to  restrain  the 
provisional  directors  from  exceeding  their  *  powers  under  the  deed,^ 

•  Midland  Great  Western  Railway  v.  Gordon,  16  M.  &  W.  804. 

•  Gilbert  v.  Cooper,  4  Railw.  C.  396 ;  8.  c.  15  Sim.  343.  All  parties  con- 
cerned must  be  made  parties  to  the  bill,  even  shareholders  of  whom  it  is  alleged 
a  rival  company  propose  to  purchase  shares,  to  destroy  the  independence  of  one 

•6,  6 


6  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

or  misapplying  the  funds,  or  delaying  payment  of  the  debts  of  the 
association.^ 

3.  Tlie  provisional  directors  usually  issue  scrip  certificates,  which 
pass  from  hand  to  hand  by  delivery  merely,  and  after  the  charter 
is  obtained,  the  scripholders  are  registered  as  shareliolders  in  the 
company,  and  thereby  become  entitled  to  all  the  rights,  and  subject 
to  all  the  liabilities  of  the  shareholders.* 

4.  And  if  the  original  subscriber  sell  the  scrip  to  one  who  omits 
to  have  his  name  registered  as  a  shareholder,  by  reason  of  which 
the  original  subscriber  cause  his  name  to  be  registered  and  sell  the 
shares  again,  he  will  be  held  to  account  for  the  avails  of  the  second 
sale,  as  a  trustee  for  the  first  purchaser.* 

5.  But  the  company  are  not  obliged  to  accept  of  the  holders  of 
scrip  as  shareholders,  m  discharge  of  the  original  subscribers,  it 
has  been  said,  but  may  insist  upon  registering  the  original  subscri- 
bers to  the  deed  of  association,  to  whose  aid  it  may  be  presumed 
the  promoters  looked  in  undertaking  the  enterprise,  which  by  their 
act  of  incorporation  they  are  morally,  and  in  some  cases  legally, 
bound  to  carry  forward.^  But  the  English  decisions,  upon  the 
whole,  hardly  seem  to  justify  this  proposition.  The  subscriber 
cannot  abandon  the  obligation  at  *  will.'  But  if  the  scrip  is  trans- 
ferable, by  delivery,  it  would  be  strange  if  the  holder  was  not  enti- 

of  the  companies  connected  -with  the  conunon  enterprise.     Greathed  r.  S.  W.  & 
Dorchester  Railway,  4  Railw.  C.  213 ;  s.  c.  10  Jur.  343. 

'  Lewis  r.  Billing,  4  Railw.  C.  414;  8.  c.  10  Jur,  851.  Bagshawe  v.  Eastern 
Union  Railway,  6  Railw.  C.  152;  s.  c.  7  Hare,  114;  Bryson  v.  Warwick  & 
Birmingham  Canal  Co.  23  Eng.  L.  &  Eq.  &  R.  91 ;  s.  c.  4  De  G.  Mac.  &  G. 
711.  In  this  last  case,  the  railway  company  being  only  provisionally  registered, 
expended  £10,000  in  the  purchase  of  the  stock  of  the  defendants.  The  railway 
finally  failing  to  go  into  operation,  in  the  process  of  winding  up,  one  of  the 
shareholders  was  allowed  to  institute  proceedings  in  equity,  on  behalf  of  him- 
self and  others,  being  shareholders,  to  compel  defendants  to  refund  the  money, 
and  the  court  held  the  contract  illegal,  and  compelled  the  defendants  to  refund 
the  money  received  under  it. 

*  Pogt,  §  47 ;  Birmingham,  B.  &  Th.  J.  Railway  ».  Locke,  1  Q.  B.  256 ; 
London  Grand  J.  Railway  r.  Graham,  id.  271 ;  s.  c.  2  Q.  B.  281 ;  The  Chelten- 
ham &  G.  W.  U.  Railway  r.  Daniel,  2  RaUw.  C.  728 ;  Sheffield  &  A.  &  M. 
Railway  c.  Woodcock,  2  Railw.  C.  522 ;  s.  c.  7  M.  &  W.  674. 

*  Beckitt  r.  Bilbrough,  19  Law  J.  522 ;  8  Hare,  188. 

*  Hodges  on  Railways,  97. 

'  Kidwelly  Canal  Co.  r.  Raby,  2  Price,  93 ;  Great  North  of  Eng.  Railway  v. 
Biddulph,  2  Railw.  C.  401 ;  s.  c.  7  M.  &  W.  243,  where  the  question  is  raised, 
but  not  determined. 
*7 


2.  MODE   OP   INSTITUTING   RAILWAY   PROJECTS.  7 

tied  to  be  registered,  as  a  shareholder,  the  same  as  the  assignee  of 
a  fully  registered  share  in  the  stock.  And  for  the  company,  after 
having  issued  scrip  certificates,  in  a  form  calculated  to  invite  pur- 
chases, and  when  they  were  aware  of  the  use  constantly  made  of 
such  scrip,  to  refuse  to  register  the  names  of  the  holders,  as  share- 
holders and  members  of  the  company,  would  amount  to  little  less 
than  express  fraud.  Hence  we  conclude  they  have  no  right  to 
decline  accepting  such  scripholder,  as  a  shareholder.^  But  where 
false  scrip  had  been  issued,  beyond  the  amount  allowed  in  the  char- 
ter, and  the  full  riumber  of  shares  allowed  by  the  charter  already 
registered,  it  was  held  the  company  could  not  upon  that  ground 
refuse  to  register  the  shares  of  such  as  had  purchased  the  genuine 
scrip.^  But  we  shall  have  occasion  to  say  more  upon  this  subject 
elsewhere.^^ 

6.  By  the  laws  of  some  of  the  States  a  given  number  of  persons 
associating,  in  a  prescribed  form,  for  particular  purposes,  as  relig- 
ious, manufacturing,  and  banking  purposes,  and  often  for  any 
lawful  purpose,  are  declared  to  be  a  corporation.  In  such  cases 
no  application  to  the  legislature  is  required.  But,  generally,  rail- 
ways in  this  count;*y  have  obtained  special  acts  of  incorporation. 
There  is,  in  most  of  the  States,  no  provision  for  any  preliminary 
association,  and  these  enterprises  are,  for  the  most  part,  carried 
forward,  by  individuals,  or  partnerships,  and  questions  arising,  in 
regard  to  the  binding  force  of  the  acts  of  the  promoters,  either 
upon,  or  towards  the  corporation,  must  depend  upon  the  general 
principles  of  the  law  of  contract.^^ 

7.  By  the  general  law  of  some  of  the  States  the  petitioners  are 
required  to  furnish  surveys  of  the  proposed  route,  properly  delin- 
eated upon  charts,  by  competent  engineers,  with  estimates,  and 
other  information  requisite  for  the  full  understanding  of  the 
subject.  And  these  profiles  and  plans  are  required,  where  the 
*  petition  is  granted,  to  be  deposited  in  some  public  ofiice,  for  in- 
spection and  preservation.^ 

8.  Since  the  publication  of  the  second  edition  of  this  work,  the 
mode  of  procedure  in  obtaining  parliamentary  powers  for  railways, 

"  Midland  G.  W,  Railway  v.  Gordon,  6  RaUw.  C.  76 ;  8.  c.  16  M.  &  W.  804. 
»  Daly  r.  Thompson,  10  M.  &  W.  309.  "  Post,  §§  39,  47. 

"  Angell  &  Ames  on  Corporations,  §§  86-94. 

«»  Laws  of  Mass.  1833,  ch.  176;  2  Railroad  Laws  &  Ch.  616;  id.  657;  Laws 
of  Mass.  1848,  ch.  140;  Laws  of  Rhode  Island,  1836;  2  Rail.  Laws  &  Ch.  838; 

•8 


8  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

in  England,  has  been  considerably  changed.  The  former  laws  have 
been  repealed,  and  the  whole  consolidated  into  one  statute,^ 
called  "  The  Companies '  Act,  1862,"  which  applies  to  other  com- 
panies as  well  as  railways. 

9.  The  usual  course  now  is  for  the  preliminary  association  to 
register  itself  as  a  preliminary  company  under  the  Act  of  1862, 
for  the  purpose  of  obtaining  a  special  Act  of  Parliament.  This 
is  effected  by  the  promoters  signing  a  memorandum  of  association, 
in  which  the  powers  of  the  company  are  specially  limited  to  certain 
acts  or  purposes. 

10.  If  the  association  be  not  registered  under  the  statute  so  as 
to  constitute  it  a  corporation  with  limited  powers,  there  may  be 
danger  that  the  individual  members,  who  are  active  in  promoting 
the  enterprise,  may  incur  the  responsibility  of  general  partners.^* 
But  in  England,  it  seems  now  settled  that  the  promoters  of  rail- 
ways are  not,  ordinarily,  to  be  held  responsible,  as  partners,  for 
the  acts  of  each  other.^^ 

Laws  of  Conn.  1849,  ch.  37 ;  id.  1853 ;  Rev.  Statutes  of  Maine,  ch.  81,  §  1 ; 
1  Rail.  Laws  &  Ch.  305.  Similar  provisions  exist  in  many  of  the  other  States. 
But  they  are  very  general,  and  ordinarily  the  plans  furnished  are  so  imper- 
fectly made,  as  not  to  afford  much  protection  to  land-OMmers.  And  a  compli- 
ance with  these  requirements  not  being,  in  any  sense  indispensable  to  the 
validitj'  of  special  acts,  they  are  probably  not  very  strenuously  enforced  by 
legislative  committees,  especially  in  cases  where  opposition  is  not  made  to  the 
new  incorporation,  which  is  not  very  common,  unless  the  project  interferes  with 
some  rival  work. 

"  25  &  26  Vict.  c.  89. 

"  Hodges  on  Railways,  (ed.  1865,)  2. 

"  Hamilton  v.  Smith,  5  Jur.  N.  S.  32 ;  Post,  §  4,  n.  11 ;  Norris  r.  Cooper,  3 
H.  Lds.  Cas.  161.  Statute  27  &  28  Vict.  c.  121,  facilitates,  in  certain  cases, 
the  obtaining  of  powers  for  the  construction  of  railways.  The  act  may  be  cited 
as  "The  Railways  Construction  Facilities  Act,  1864."  The  recital  to  the  pre- 
amble enumerates  the  cases  to  which  the  act  is  to  apply ;  it  recites  that  it  is 
expedient  to  facilitate  the  making  of  branch  and  other  lines  of  railway,  and  de- 
viations of  existing  railways,  and  of  railways  in  course  of  construction,  and  also 
the  execution  of  new  works  connected  with,  or  for  the  purposes  of,  existing 
railways ;  and  that  the  object  aforesaid  would  be  promoted,  if,  where  all  land- 
owners and  other  parties  beneficially  interested  are  consenting  to  the  making  of 
a  railway,  or  the  execution  of  a  work,  the  persons  desirous  of  making  or  execut- 
ing the  same  were  enabled  to  obtain  power  to  do  so,  on  complying  with  the  con- 
ditions of  the  general  Act  of  Parliament,  without  being  obliged  to  procure  a 
special  act.  The  promoters  having  contracted  lor  the  purchase  of  all  the  lands 
required  for  the  railway,  they  are  empowered  to  apply  for  a  certificate  from  the 


§3. 


CONTRACTS   OP   PROMOTERS   NOT   BINDING. 


•SECTION    II. 


Contracts  of  the  Promoters  not  hindinff  at  law  upon  the  Company. 


In  this  country,  promoters  only  bind  them- 

selves  c{jid  associates. 
Contracts  of  promoters  not  enforceable  6y 

company. 


But  by  consenting  to  a  decree  in  equity 
Betting  up  the  contract,  the  company 
will  be  held  to  have  adopted  it. 


§  3.  1.  The  promoters  of  railways,  in  this  country,  where  the 
law  makes  no  provision  for  the  preliminary  association  becoming 
a  corporation,  can  only  bind  themselves  and  their  associates,  at 
most,  by  their  contracts.^    The  promoters  are  in  no  sense  *  identi- 

Board  of  Trade,  in  the  same  manner,  and  subject  to  the  same  incidents,  as  ob- 
taining a  certificate  under  the  Railways  Companies'  Powers  Act. 

The  lines  and  works  of  a  railway  are  sufficiently  shown  on  the  plans  deposited 
by  a  black  line,  with  dotted  lines  on  each  side,  to  mark  the  limits  of  deviation. 
Weld  r.  London  and  South  Western  Railway  Co.,  9  Jur.  N.  S.  510,  8.  c.  11 
W.  R.  448 ;  32  Beay,  340. 

Where  the  deposited  plans  and  sections  specify  the  span  and  height  of  a  bridge 
by  which  a  railway  is  to  be  carried  over  a  turnpike  road,  the  company  will  not, 
in  the  construction  of  tlie  bridge,  be  allowed  to  deviate  from  the  plans  and  sec- 
tions. Attorney-General  v.  Tewkesbury  and  Great  Malvern  Railway  Company, 
1  De  G.  J.  &  Sm.  423 ;  9  Jur.  N.  S.  951 ;  s.  c.  8  L.  T.  N.  S.  682. 

'  Mone)'penny  v.  Hartland,  1  C.  and  P.  352.  Abbott,  CL  J.,  said:  "Before 
an  act  passes  for  such  a  work  as  this,  the  surveyor  and  other  persons  employed 
on  it  look  to  the  committee,  or  body  of  adventurers,  who  first  employ  them.^' 
8.  P.  Kerridge  v.  Hesse,  9  C.  &  P.  200;  Doubleday  p.  Muskett,  7  Bing.  110. 
And  one  who  attends  the  meetings  of  such  preliminary  association,  and  takes 
part,  will  ordinarily  be  precluded  from  denying  his  liability  as  a  partner.  Har- 
rison r.  Heathom,  6  Man.  &  Gr.  81 ;  Sheffield,  Ash.  and  M.  Railway  v.  Wood- 
cock, 7  M.  and  W.  574.  If  the  defendants  have  suffered  themselves  to  be  held 
out  as  partners  in  the  enterprise,  and  engaged  in  carrying  it  forward,  and 
others  have  performed  service  for  the  association,  upon  their  credit,  they  are 
liable.  Wood  v.  The  Duke  of  Argjll,  6  Man.  &  Gr.  928 ;  Steigenbergcr  v. 
Carr,  3  id.  191.  But  express  proof  is  required  of  authority  from  the  partners, 
or  of  a  necessity  to  draw  bills,  in  the  conduct  of  the  business,  to  justify  the 
directors  in  drawing  bills  on  the  credit  of  the  association.  Dickinson  v.  Valpy, 
10  B.  &  C.  128.  From  the  foregoing  cases,  and  Bell  t.  Francis,  9  C.  &  P.  66, 
and  some  others,  it  would  seem,  that  the  directors  and  managing  committee  are 
always  liable  for  services  rendered  such  associations,  on  their  employment  and 
credit,  and  that  such  other  members  of  the  association  are  liable  also,  as  the 
terms  of  the  association,  or  their  own  active  agency  in  the  employment  of  scr- 

•9,10 


10  PBEUMINABT  ASSOCIATIONS.  CH.  H. 

cal  with  the  corporation,  nor  do  they  represent  them,  in  any  rela- 
tion of  agency,  and  their  contracts  could  of  course  only  bind  the 
company,  so  far  as  they  should  be  subsequently  adopted  by  it,  as 
their  successors ;  much  in  the  same  mode  and  to  the  same  extent, 
and  under  the  same  restrictions  and  limitations,  as  the  contracts 
of  one  partnership  bind  a  succeeding  partnership  in  the  same  house. 
2.  But  a  contract  by  a  joint-stock  association,  that  each  member 
shall  pay  all  assessments  made  against  him,  cannot  be  enforced 
by  a  corporation"  subsequently  created,  and  to  which,*  in  pursuance 
of  the  original  articles  of  association,  the  funds  and  all  the  eflfects 
of  the  former  company  have  been  transferred.^    Nor  is  the  act  of 

yante  and  agents,  fairly  justify  such  employees  in  looking  to  for  compensation. 
It  was  held,  in  Scott  v.  Lord  Ebury,  Law  Rep.  2  C.  P.  255,  that  the  promoters 
were  responsible  for  money  expended  in  obtaining  the  act  of  parliament,  not- 
withstanding the  incorporation  and  the  assumption  of  these  acts  by  the  company. 
And  one  of  the  promoters  cannot  in  equity  compel  others  to  contribute  to  ex- 
penses incurred  by  him,  unless  he  is  willing  to  have  all  the  expenses  brought 
into  one  account  and  adjusted  together.  Denton  r.  Macniel,  Law  Rep.  2  £q. 
352.     Post,  §  4,  n.  11. 

In  regard  to  admissions  made  by  proyisional  committee-men,  and  others,  who 
have  taken  part  in  instituting  railway  projects,  some  allowance  is  made  in  the 
English  courts,  for  probable  mistakes  and  misapprehensions,  by  those  not  well 
acquainted  with  the  liabilities  of  such  persons.  Newton  v.  Belcher,  6  Railw.  C. 
38;  s.  c.  12  Q.  B.  921.  And  where  others  have  not  acted  upon  such  admis- 
sions, the  party  has  been  allowed  to  show  that  they  were  made  under  mistake, 
either  of  law,  or  fact,  and  if  so,  the  party  has  been  held  not  to  have  incurred 
any  additional  liability'  thereby.  Newton  v.  Liddiard,  6  Railw.  C.  42 ;  s.  C.  12 
Q.  B.  925. 

The  rule  laid  down  by  Bailey,  J.,  in  Heane  v.  Rogers,  9  B.  &  C.  577,  upon 
this  subject,  is  here  expressly  recognized  by  Lord  Denman,  Ch.  J.  "  The 
general  doctrine  laid  down  in  Heane  r.  Rogers,  that  the  party  is  at  liberty  to 
prove  that  his  admissions  were  mistaken,  or  untrue,  and  is  not  estopped,  or  con- 
cluded by  them,  unless  another  person  has  been  induced  by  them  to  alter  his 
condition,  is  applicable  to  mistakes,  in  respect  of  legal  liability,  as  well  as  in 
respect  of  fact."  And  this  estoppel,  it  was  held  in  the  principal  case,  only 
extends  to  parties  and  privies,  to  the  particular  transaction  in  which  the  admis- 
sion was  made,  and  that  third  parties,  having  no  interest  in  it,  either  originally 
or  by  derivation,  can  claim  no  benefit  fit>m  it.  This  is  in  accordance  with  the 
established  principles  of  the  law  of  evidence,  at  the  present  time.  See  the 
opinion  of  the  court  in  Strong  r.  Ellsworth,  26  Vt.  366. 

*  Wallingford  Manufacturing  Co.  v.  Fox,  12  Vt.  304 ;  Goddard  v.  Pratt,  16 
Pick.  412,  where  it  is  held,  the  original  copartners  are  still  liable,  upon  con- 
tracts made  with  third  parties,  ignorant  of  the  dissolution  by  the  effect  of  the 
incorporation,  the  company  having  carried  on  business  in  (he  name  of  the  part- 
nership. 

•11 


§4. 


SUBSCRIBERS   TO   PRELIMINARY  ASSOCIATION. 


11 


all  the  corporators  even,  the  act  of  the  corporation,  unless  done  in 
the  ipode  prescribed  by  the  charter  and  general  laws  of  the  state.* 
Nor  can  an  incorporated  company  sustain  an  action  at  law,  upon  a 
bond  executed  to  a  preliminary  association,  by  the  name  of  the  in- 
dividuals and  their  successors,  as  the  governors  of  the  Society  of 
Musicians,  for  the  faithful  accounting  of  A.  B.,  their  collector,  to 
them  and  their  successors,  governors,  &c.,  the  company  being  sub- 
sequently incorporated.* 

8.  But  the  company,  by  consenting  to  a  decree  against  them, 
upon  a  bill  to  enforce  a  contract  with  the  promoters,  by  which  they 
stipulated  to  withdraw  opposition  in  parliament,  upon  condition 
that  the  company,  when  it  came  into  operation,  should  take  the 
land  of  the  opposers  of  the  bill  at  a  specified  price,  and  pay  all  the 
costs  and  expenses  of  the  opposition  until  the  time  of  the  compro- 
mise, were  held  to  have  adopted  the  agreement,  whether  it  would 
have  been  otherwise  binding  upon  them  or  not.^ 

SECTION    IIL 


Subscribers  to  the  Preliminary  Association  inter  sese. 


8. 


lAability  for  acts  of  directors  limited  by 

terms  of  subscription. 
Ataociation  not  binding  until  prdimina- 

ries  are  complied  with. 
Contracts,  how  far  controlled  by  oral  rep- 

reaentations  of  directors. 
Subtcriben  not  excused  from  paying  calls 

6y  contract  of  directors. 


6.  Not  liable  for  expenses,  except  by  terms  of 
agreement. 

6.  Deeds  of  association  generally  make  pro- 

vision for  expenses. 

7.  One  who  obtains  shares,  without  executing 

the  deed,  not  bound  to  contribute. 
n.  11.    No  relation   of  general  partnership 
subsists  between  subscrAers. 


§  4.  1.  The  project  for  a  railway  being  set  on  foot  by  a  •pro- 
visional committee  of  directors  or  managers,  the  subscribers  may 
insist  upon  the  terms  of  subscription.  The  subscribers  are  not 
bound  by  any  special  undertaking  of  the  directors,  or  any  portion 
of  them,  beyond  or  aside  of  the  powers  conferred  by  the  terms  of 
the  deed  or  contract  of  association.^ 

2.  And  the  association  is  not  binding,  until  the  provisions  by 

»  Wheelock  c.  Moulton,  15  Vt.  619. 

*  Dance  v.  Girdler,  4  Bos.  &  P.  34.     See  Gittings  r.  Mayhew,  6  Md.   113. 

»  Williama  v.  St.  George's  Harbor  Co.,  2  De  G.  &  J.  647 ;  s.  c.  4  Jur.  N.  S. 
1066. 

»  Londesborough  ex  parte,  27  Eng.  L.  &  Eq.  292 ;  8.  c.  4  De  G.  M,  &  G. 
411;  Ex  parte  Mowatt,  1  Drewiy,  247. 

•12 


12  PRELIMINARY  ASSOCIATIONS.  CH.  II. 

which  it  is,  by  its  own  terms,  to  become  complete,  are  complied 
with.  If  before  that  the  scheme  be  abandoned,  the  provisional 
subscribers,  or  allottees,  may  recover  back  their  deposits  of  the 
provisional  committee,  in  an  action  for  money  had  and  received.^ 
So,  too,  if  one  is  induced  to  accept  of  shares  in  the  provisional  com- 
pany, by  fraudulent  representations,  he  may  recover  back  the  whole 
of  his  deposits.^ 

3.  But  if  one  actually  become  a  subscriber,  he  is  bound  by  the 
terms  of  subscription,  without  reference  to  prior  oral  representa- 
tions, and  must  bear  a  portion  of  the  expense  incurred,  if  the  sub- 
scription so  provide.*  But  if  the  directors,  in  such  provisional 
company,  in  order  to  induce  subscriptions,  promise  the  subscriber, 
that  in  the  event  of  no  charter  being  obtained,  he  shall  be  repaid 
his  entire  deposit,  this  contract  is  binding  upon  them,  and  may  be 
enforced  by  action,  notwithstanding  the  subscriber's  agreement 
authorized  the  directors  to  expend  the  money  in  the  mode  they  did.^ 

4.  But  the  contract  of  the  directors  will  not  excuse  the  subscri- 
ber from  paying  calls,  if  the  terms  of  the  subscriber's  agreement 
require  it.^  The  contract  of  the  directors  in  such  case,  and  the 
deed  of  association,  are  wholly  independent  of  each  other,  and 
neither  will  control  the  other.'^ 

*  5.  But  it  has  been  held,  that  persons,  by  taking  shares  in  a 
projected  railway,  do  not  bind  themselves  to  pay  any  expense 
incurred,  unless  it  is  so  provided  in  the  preliminary  contracts  of 
association,  or  the  expense  is  incurred  with  their  sanction  and 
upon  their  credit.^  And  even  where  such  shareholder  consents 
to  act  on  the  provisional  committee,  it  will  not  render  him  liable, 
as  a  contributory,  to  the  expense  of  the  company.^ 

«  Walstab  v.  Spottiswoode,  4  Railway  C.  321 ;  s.  c.  15  M.  &  W.  501. 
3  Jarrett  v.  Kennedy,  6  C.  B.  319. 

*  Watts  V.  Salter,  10  C.  B.  477.  And  if  one  subscribe  the  agreement  and 
parliamentary  contract,  he  will  be  liable,  although  he  have  not  received  the  shares 
allotted  to  him  or  paid  the  deposits.     Ex  parte  Bowen,  21  Eng.  L.  &  £q.  422. 

»  Mowatt  V.  Londesborough,  25  Eng.  L.  &  Eq.  25,  and  3  El.  &  Bl.  307  ;  8.  C. 
in  error,  28  Eng.  L.  &  Eq.  119,  and  4  El.  &  Bl.  1 ;  Ward  v.  Same,  22,  Eng.  L. 
&  Eq.  402. 

*  Ex  parte  Mowatt,  1  Drewry,  247. 

'  Dover  &  Deal  Railway,  ex  parte  Mowatt,  19  Eng.  L.  &  Eq.  127 ;  8.  c.  1 
Drew,  247. 

8  Maudslay  ex  parte,  1  Eng.  L.  &  Eq:  61 ;  14  Jur.  1012. 

'  Carmichael  ex  parte,  1  Eng.  L.  &  Eq.  66 ;  s.  c.  14  Jur.  1014 ;  Clarke  ex 
parte,  id.  69 ;  s.  c.  20  L.  J.  N.S.  ch.  14. 
♦  13 


§  4.  SUBSCRIBERS  TO   PRELIMINARY  ASSOCIATION.  13 

6.  But  in  general,  the  form  of  the  deeds  of  association  is  such, 
that  if  one  takes  shares  without  reservation,  he  is  to  be  regarded 
as  a  contributory  to  the  expense,^^  and  especially  where  he  acts  as 
one  of  the  provisional  committee,  and  also  accepts  shares  allotted 
to  him.io 

7.  But  one  who  has  obtained  shares  in  a  projected  railway 
company,  but  without  executing  the  deed  of  settlement,  or  any 
deed  referring  to  it,  was  held  not  liable  to  contribute  to  the 
expense  incurred,  in  attempting  to  put  the  company  in  operation,^* 
and  especially  if  the  acceptance  of  the  shares  is  conditional,  upon 
the  full  amount  of  the  capital  of  the  company  being  subscribed, 
which  was  never  done." 

'»  Burton  «x  parU,  13  Eng.  L.  &  Eq.  435 ;  8.  c.  16  Jur.  967 ;  Markwell  ex 
parte,  13  Eng.  L.  &  Eq.  456 ;  8.  c.  5  De  G.  &  S.  628 ;  Upfill's  case,  1  Eng.  L. 
&  Eq.  13 ;  8.  c.  14  Jur.  843 ;  Watts  r.  Salter,  12  Eng.  L.  &  Eq.  482.  See  also 
St.  James's  Club  in  re,  13  Eng.  L.  &  Eq.  689 ;  8.  c.  10  C.  B.  477 ;  as  to  the 
effect  of  proof  of  the  subscriber  being  present  when  a  resolution  is  passed. 

"  The  Galvanized  Iron  Co.  r.  Westoby,  14  Eng.  L.  &  Eq.  386  ;  s.  c.  8  Exch.  17. 

It  was  formerly  considered,  that  all  persons  engaged  in  obtaining  a  bill  in 
parliament  for  building  a  railway,  were  partners  in  the  undertaking,  and  for  that 
reason  a  subscriber,  who  acted  as  their  surveyor,  could  not  maintain  an  action 
for  work  and  labor,  done  by  him  in  that  character,  against  all  or  any  one  of  the 
subscribers.  Holmes  o.  Uiggins,  1  B.  &  C.  74.  See  also  Groddard  v.  Hodges, 
1  C.  &  M.  33. 

But  it  is  now  regarded  as  well  settled,  in  all  the  courts  in  Westminster  Hall, 
that  there  subsists  between  the  subscribers  to  such  an  enterprise  no  relation  of 
general  partnership  whatever,  and  no  power  to  bind  each  other  for  expenses 
incurred  in  carrying  forward  the  enterprise.  Each  binds  himself  only  by  his 
own  acts  and  declarations,  unless  he  acts  by  virtue  of  some  authority  conferred 
by  the  deeds  of  association.  Parke,  Baron,  in  Bright  r.  Hutton,  3  H.  L.  Cases, 
341,  368.  And  an  agreement,  aside  of  the  deed  of  association,  that  one  of  the 
promoters  shall  indemnify  another,  is  held  valid.  Connop  o.  Levy,  5  Ilailway  C. 
124 ;  8.  c.  11  Q.  B.  769.  But  a  general  indemnity  against  costs  will  only  ex- 
tend to  costs  in  suits  lawfully  brought.  Lewis  v.  Smith,  2  Shelford,  Bennett's 
ed.  1030. 

And  in  regard  to  liability,  for  expenses  incurred  in  carrying  forward  railway 
projects,  it  often  happens,  that  one  who  has  been  active  may  thereby  make  liim- 
self  liable  to  tradesmen  and  others  who  have  performed  service  in  behalf  of  the 
enterprise,  upon  the  expectation  he  would  see  them  paid.  In  Lake  r.  Duke  of 
Argj-ll,  6  Q.  B.  477,  479,  Denman,  Ch.  J.,  said:  "But  when  persons  meet  to 
prepare  the  measures  necessary  for  calling  the  society  into  existence,  attendance 
on  such  meeting,  and  concurrence  in  such  measures,  may  be  strong  evidence, 
that  any  individual  there  present,  and  taking  part  in  the  proceedings,  held 
himself  out  as  a  paymaster  to  all  who  executed  their  orders ;  and  though 
not  liable  as  a  member  or  shareholder,  yet  his  declared  intention  to  become 


1^  PRELIMINARY   ASSOCIATIONS.  CH.  II. 


♦SECTION    IV. 
Contracts  of  the  Promoters  adopted  hy  the  Company. 

1.  Liability  may  be  transferred  with  assent  of  \  n.  3.  Powers  of  provisional  company  to  con- 
creditors.  But  not  unless  that  is  equitable.  |  tract  limited  by  statute. 

§  5.  1.  The  company  when  fully  incorporated  may  assume  the 
liabilities  of  the  preliminary  association,  incurred  in  obtaining  *  the 
special  act,  or  as  is  sometimes  the  case,  where  the  association 

the  president,  or  a  member,  in  whatever  event,  or  to  take  a  share  under 
any  conditions,  may  be  material  evidence  to  show  that  he  authorized  contracts 
with  those  whose  services  were  required  by  what  may  be  called  the  constituent 
body." 

But  a  charge  to  the  jurj',  that  before  surveyors,  in  such  case,  could  recover  of 
the  provisional  committee,  they  must  be  satisfied  that  defendants  did,  by  them- 
selves or  their  agent,  employ  the  plaintiff  to  do  the  work,  or  that,  being  informed 
of  their  having  done  it,  on  their  credit,  by  the  employment  of  some  one  not 
authorized,  they  consented  to  be  held  liable,  was  affirmed  in  the  Exchequer 
Chamber.  Nevins  v.  Henderson,  5  Railway  C.  684 ;  Williams  v.  Pigott,  5  Rail- 
way C.  544;  8.  c.  2  Exch.  201.  See  also  Spottiswoode's  case,  39  Eng.  L.  & 
Eq.  520.  Since  the  publication  of  the  second  edition  of  this  work,  the  English 
courts  have  made  numerous  decisions  bearing  upon  the  general  subject  discussed 
in  this  note.  In  Maddick  v.  Marshall,  10  Jur.  N.  S.  1201,  the  defendant  was 
employed  by  the  parties  in  interest  to  act  as  provisional  director  in  connection 
with  others,  under  the  assurance  from  the  solicitor  of  such  parties,  that  they 
were  safe  and  would  incur  no  personal  responsibility ;  and  the  directors  there- 
upon appointed  the  principal  party  in  interest  secretary,  and  passed  a  resolu- 
tion to  advertise,  which  resolution  was  signed  by  the  defendant  as  director.  The 
plaintiff,  upon  taking  the  order,  was  shown  the  resolution  certified  by  the  defend- 
ant as  authority  for  the  order.  The  court  held  this  testimony  for  the  jury  to 
consider,  tending  to  show  a  personal  undertaking  by  defendant,  and  that  they 
could  not  disturb  a  verdict  against  him.  See  also  Swan  v.  The  North  British 
Australasian  Co.,  7  H.  &  N.  603  ;  s.  c.  8  Jur.  N.  S.  940,  as  to  what  acts  will  create 
an  estoppel  in  such  cases. 

Under  the  English  statute,  all  the  subscribers  are  constituted  directors  until 
they  designate  who  shall  act  in  that  capacity,  and  have  authority  to  appoint  one 
of  their  number  to  an  office  in  the  company.  Eales  v.  The  Cumberland  Black 
Lead  Mine  Co.,  6  H.  &  N.  481 ;  s.  c.  7  Jur.  N.  S.  169. 

It  seems  to  be  considered  essential,  in  order  to  fix  the  liability  of  a  subscriber 
to  the  articles  of  association  on  that  ground  alone,  that  the  subscription  should 
be  in  his  own  handwriting,  and  not  by  procuration  merely.  Richardson  ex  parte ^ 
4  Law  T.  N.  S.  589.  The  company  are  not  bound  to  give  notice  of  the  allotment 
of  shares  in  order  to  bind  the  subscriber  to  take  them.  It  is  his  duty  to  take 
notice  of  the  allotment,  and  to  make  payment  of  all  future  dues  fixed  by  law,  or 
the  terms  of  the  contract.  Bloxam  ex  paiie,  10  Jur.  N.  S.  814;  s.  c.  33  Beav. 
♦  14,  15 


§  5.  CONTRACTS  OF  PROMOTERS  ADOPTED.  16 

make  an  assignment  of  their  property.^  But  even  an  express 
provision  in  the  charter,  that  the  company  shall  be  *  solely  liable 
for  the  debts  of  the  association,  will  not  exonerate  the  association 
unless  by  the  Consent  of  the  creditors.*  But  when  the  company 
assume  the  debts  of  the  association,  by  the  assent  of  their  cred- 
itors, they  will  be  relieved.'    But  where  the  plaintiff  contracted 

629.  But  in  order  to  render  the  allottee  liable  to  pay  calls  on  shares,  they 
should  be  specifically  numbered  and  appropriated  by  number.  Irish  Peat  Co.  v. 
Phillips,  7  Jur.  N.  S.  413 :  8.  c.  affirmed  7  Jur.  N.  S.  1189,  1  B.  «&  S.  598.  But 
semble  he  may  be  estopped  to  deny  his  membership.  So,  too,  it  was  considered 
in  this  case,  that  in  order  to  bind  an  associate  to  pay  future  calls,  it  was  essen- 
tial that  he  should  have  subscribed  the  deed  of  association. 

The  provision  of  the  English  statute  as  to  the  period  within  which  the  register 
of  shareholders  shall  be  made  and  sealed  is  regarded  as  directory,  so  far  as  the 
liability  of  shareholders  is  concerned,  and  they  will  not  be  exonerated  from  re- 
sponsibility by  a  failure  of  the  company  to  comply  with  the  direction.  W.  N.  W. 
Co.  r.  Hawksford,  11  C.  B.  N.  S.  456;  8  Jur.  N.  S.  844  in  Exchequer 
Chamber. 

The  company,  when  fully  incorporated,  may  sue  in  their  own  name  upon  calls 
made  by  the  directors  of  the  preliminary  incorporation.  Hull  Co.  v.  Wellesley, 
6  H.  &  N.  38. 

A  registered  shareholder  in  a  company,  which  was  afterwards  incorporated 
with  a  new  company,  is  entitled  to  be  regarded  as  a  shareholder  in  the  new  com- 
pany, if  the  act  of  incorporation  so  provide,  although  he  may  not  have  exchanged 
his  certificate  for  shares  in  the  old  company  for  those  in  the  new  company. 
Spackman  v.  Lattimore,  3  Giff.  16 ;  8.  C.  7  Jur.  N.  S.  179.  It  was  further  de- 
cided in  this  case,  that  the  subscribers  could  not  charge  their  own  subscriptions 
against  the  company  as  money  advanced  for  their  benefit. 

Where  a  subscriber  has  paid  for  the  expenses  of  the  promoters  all  that  the 
terms  of  association  required,  he  cannot  be  charged  further,  because  he  made 
the  payment  without  taxation.     Croskey  v.  Bank  of  Wales,  4  Gif.  314, 

The  property  in  shares  vests  in  the  subscriber  upon  the  execution  of  the  deed 
and  complete  registration  of  the  company,  and  the  delivery  of  scrip  certificates 
is  not  requisite  to  vesting  the  shares,  but  they  are  to  be  regarded  merely  as  the 
indicia  of  property.     Hunt  v.  Gunn,  3  F.  &  F.  223. 

'  Haslett's  ExVs  v.  Wotherspoon,  1  Strob.  Eq.  209 ;  Salem  Mill  Dam  Co.  r. 
Ropes,  6  Pick.  23. 

•  Witmer  v.  Schlatter,  2  Rawle,  359. 

'  Whitwell  r.  Warner,  20  Vt.  426.  But  by  the  English  statutes  companies 
provisionally  registered  are  not  allowed  to  make  any  contract,  not  indispensable 
to  carrying  forward  the  project  to  full  registration.  And  where  the  directors  of 
such  a  company  contracted  for  plans,  sections,  and  books  of  reference,  to  the 
value  of  £3,000,  it  was  held  a  violation  of  the  statute  and  illegal,  and  that  no 
recovery  could  be  had  upon  it.  Bull  c.  Chapman,  20  Eng.  L.  Eq.  488 ;  s.  c.  8 
Exch.  444 ;  7  &  8  Vict.  ch.  110. 

A  contract  made  between  the  projector  and  the  directors  of  a  company  pro- 

•  16 


16  PRELIMINARY  ASSOCIATIONS.  A  CH.  II. 

with  the  promoters  of  a  railway  bill  to  bear  the  costs  of  obtaining 
it,  and  the  bill  passed  with  the  usual  clause  that  the  costs  of  ob- 
taining it  should  be  borne  by  the  company,  it  was  nevertheless 
held,  that  the  contract  would  preclude  the  recovery  of  the  costs  of 
the  corporation.* 

SECTION   V. 
How  contracts  of  the  Promoters  may  he  adopted  by  the  Company. 

Cannot  assume  the  benefit  without  the  burden. 

§  6.  Wherever  a  third  party  enters  into  a  contract  with  the 
promoters  of  a  railway,  which  is  intended  to  enure  to  the  benefit 
*  of  the  company,  ahd  they  take  the  benefit  of  the  contract,  they  will 
be  bound  to  perform  it,  upon  the  familiar  principle  that  one  who 
adopts  the  benefit  of  an  act,  which  another  volunteers  to  perform 
in  his  name  and  on  his  behalf,  is  bound  to  take  the  burden  with 
the  benefit.^ 

visionally  registered,  but  not  in  terms  made  conditional  on  the  completion  of  the 
company,  is  not  binding  upon  the  subsequently  completely  registered  company, 
although  ratified  and  confirmed  by  the  deed  of  settlement.  Gunn  ».  London  and 
Lancashire  Assurance  Co.,  12  C.  B.  N.  S.  694. 

The  promoters  of  a  railway  company  agreed  with  the  tenant  for  life  of  settled 
estates  to  pay  him  £20,000  for  obtaining  his  support  to  their  scheme.  This 
agreement  was  afterwards  adopted  by  the  provisional  committee  of  a  second 
company,  which  stood  in  place  of  the  first.  The  second  comp>any's  bill  passed, 
and  an  indenture  was  made  under  the  company's  seal,  by  which,  on  the  ground 
of  doubts  as  to  the  absolute  right  of  the  tenant  for  lifeAo  the  £20,000,  the  com- 
pany was  to  retain  the.  sum  and  pay  interest  on  it.  Literest  was  paid  for  some 
years,  but  at  length  the  company  refused  to  make  any  further  payment.  Upon 
a  bill  by  a  subsequent  tenant  for  life  of  the  estates  to  have  the  company's  liability 
declared,  and  obtain  payment  of  the  £20,000  for  the  benefit  of  the  settled  estate : 
Held,  that  the  contract  was  ultra  vires,  and  could  not  be  enforced. 

Held,  also,  that  this  was  not  within  the  ipeaning  of  the  Companies'  Clauses 
Consolidation  Act,  sec.  65,  as  being  in  respect  of  "  costs  incurred  in  obtaining  the 
special  act,  and  incident  thereto."  Lord  Shrewsbury  v.  North  Staflfordshire 
Railw.  V.  C.  Kindersley ;  12  Jur.  N.  S.  63. 

*  Savin  v.  Hylake  Railway,  Law  Rep.  1  Exch.  9 ;  8.  c.  Law  Rep.l  Eq,  593. 

'  Gooday  r.  The  Colchester  &  Stour  Valley  Railway,  15  Eng.  L.  &  Eq. 
696 ;  8.  C.  17  Beav.  132 ;  Preston  v.  Liverpool  &  M.  Railway,  7  Eng.  L.  &  Eq, 
124 ;  8.  C.  1  Sim.  N,  S.  586 ;  Edwards  v.  Grand  Junction  Railway,  1  Mylne  & 
Cr.  650.  The  cases  in  support  of  this  general  proposition  are  very  numerous, 
and  will  be  more  fully  examined  in  the  next  section. 
•17 


§  7.  CONTRACTS   BETWEEN  PROMOTERS  AND   OPPOSERS.  17 


SECTION    VI. 

Contr<ict8  between  the  Promoters  and  Opposers  of  a  Bill  for  the 
Charter  of  a  Railway. 

1.  Engliah  cases  numerous.  I   2-6.  Lord  Eldon's  opinion,  in  case  of  Faux* 

1  haU  Bridge  Co. 

§  7.  1.  The  cases  in  the  English  books  upon  the  subject  of 
contracts  between  the  promoters  of  railway  projects  in  parliament 
and  those  who  have  counter  interests,  and  who  are  ready  to  per- 
sist in  opposition  to  such  projects  unless  they  can  secure  some 
compromise  with  the  promoters,  are  considerably  numerous,  and 
involve  a  question  of  no  inconsiderable  importance.  We  shall 
therefore  examine  them  somewhat  in  detail. 

2.  One  of  the  earliest  cases  upon  this  subject  ^  was  decided  by 
the  Lord  Chancellor,  Cottenham,  upon  full  argument,  and  great 
consideration,  as  early  as  1836.  But  as  this  case  professes  to 
rest  mainly  upon  a  leading  opinion  of  Lord  Chancellor  Eldon^ 
upon  a  somewhat  analogous  subject,  it  may  not  be  improper  here 
to  give  the  substance  of  that  decision. 

3.  The  application  to  parliament  for  the  plaintiffs'  company,  if 
granted,  it  was  conceded,  would  injuriously  affect  the  tolls  upon 
another  bridge  not  far  distant.  The  proprietors  of  this  bridge 
were  opposing  the  plaintiffs'  grant  before  the  parliamentary  com- 
mittee, with  a  view  to  secure  some  indemnity  against  *  such  loss,  to 
be  specially  provided  for  by  the  plaintiffs'  act,  upon  condition  that 
the  plaintiffs  should  open  their  bridge  for  the  public  travel.  The 
promoters  of  the  plaintiffs'  grant  and  the  proprietors  of  the  rival 
bridge  had  come  to  an  agreement  in  regard  to  the  extent  of  the 
indemnity,  and  upon  naming  it  to  the  committee,  with  a  view  to 
have  it  inserted  in  the  act,  one  member  of  the  committee  objected 
to  such  course,  as  calculated  to  sanction  improper  influences  upon 
public  legislation.  The  promoters  of  the  new  bridge  then  pro- 
posed to  the  proprietors  of  the  rival  one  to  give  them  security  for 
the  proposed  indemnity,  by  way  of  bond  with  surety  which  should 
quiet  their  opposition,  and  the  bill  pass.  Tliis  was  acceded  to  and 
the  securities  given,  and  the  bill  passed  accordingly.     The  opinion 

•  Edwards  c.  The  Grand  Junction  Railway,  1  Mylne  &  Cr.  650. 

•  VauxhaU  Bridge  Co.  v.  The  Earl  of  Spencer,  Jacob,  64  (1821). 

2  'IS 


18  PRELIMINARY    ASSOCIATIONS.  CH.  II. 

of  Lord  Eldon  is  an  aflfirmance  of  the  decision  of  the  Yice-Chan- 
cellor,  retaining  the  bill  till  the  matter  should  be  tried  at  law.^ 
But  the  intimations  of  the  Chancellor  indicate  certainly  that  he 
regarded  the  contract  as  perfectly  valid,  and  the  bill  was  after- 
wards dismissed  by  consent.  Lord  Eldon  said,  "  in  the  view  I 
•take  of  the  case,  it  will  not  be  an  obstacle  to  the  plaintiffs  that 
they  do  not  come  with  clean  hands,  for  it  is  settled,  that  if  a  trans- 
action be  objectionable,  on  grounds  of  public  policy,  the  parties  to 
it  may  be  relieved  ;  the  relief  not  being  given  for  their  sake,  but 
for  the  sake  of  the  public.  Thus  it  is  in  the  case  of  marriage  brocage 
bonds.  The  principle  was  much  discussed  in  the  case  of  Neville  v. 
Wilkinson,*  where  Mr.  Neville  being  about  to  marry,  inquiry  was 
made  by  the  lady's  father  to  what  extent  he  was  indebted.  Wil- 
kinson, who  was  applied  to  at  the  desire  of  Neville,  concealed  a 
demand  which  he  had  against  him ;  after  the  marriage  he  at- 
tempted to  recover  it,  and  a  bill  was  filed  to  restrain  him.  I 
remember  arguing  it  with  obstinacy,  but  Lord  Thurlow  thought 
that,  having  made  a  misrepresentation,  a  court  of  equity  must 
hold  him  to  it,  and  that,  although  the  plaintiff  was  a  particeps 
criminis ;  so  it  was  held  in  the  case  of  Shirley  v,  Ferrers,^  in  the 
Exchequer. 

4.  "  It  is  argued  that  this  was  a  fraud  upon  the  legislature, 
but  I  think  it  would  be  going  a  great  way  to  say  so,  for  non 
*  constat,  if  it  had  been  pushed  to  the  extent  of  taking  the  opinion 
of  the  house,  that  it  might  not  have  passed  the  bill  in  its  former 
shape.  It  cannot  be  said  that  the  agreement  is  contrary  to  legis- 
lative policy,  because  one  member  of  the  committee  makes  an 
objection,  which  is  not  sanctioned  or  known  by  the  house  at  large. 
Indeed,  such  things  are  constantly  done,  and  with  the  knowledge 
of  the  house ;  for  they  are  in  the  habit  of  saying,  with  respect  to 
these  private  acts,  that  though  they  will  not  of  themselves  pass 
them  into  laws,  yet  they  will  if  the  parties  can  agree  ;  and  mattera 
sometimes  are  permitted  to  stand  over  to  give  an  opportunity  of 
coming  to  a  settlement. 

6.  "It  is  then  said,  that  the  money  was  to  be  paid  out  of  the 
funds  of  the  Yauxhall  Bridge  Company,  which  by  the  act  were 
devoted  to  other  purposes.  The  proprietors  of  Battersea  Bridge, 
however,  say  that  they  have  nothing  to  do  with  the  funds  of  the 

'  8.  c.  2  Mad.  356.  *  1  Br.  C.  O.  643. 

»  Cited  11  Vesey,  636. 
♦19 


§  8.  CONTRACTS  BETWEEN   PROMOTERS   AND   OPP08ER8.  19 

company ;  that  they  have  contracted  with  a  number  of  inde- 
pendent persons,  to  whom  they  look  for  the  payment  of  the  bonds ; 
and  if  the  obligors  agree  with  the  company  to  pay  the  bonds  with 
their  money,  what  have  the  obligees  to  do  with  that  imless  by  ante- 
cedent contract  ?  They  had  no  demand  in  law  or  equity  against 
the  company.  If,  then,  the  Vauxhall  proprietors  choose  to  sanc- 
tion what  the  legislature  has  not  directed,  namely,  the  indemnify- 
ing the  persons  who  have  become  obligors  in  the  bonds,  that  is  one 
thing ;  if  they  have  not,  then  the  individual  officers  who  have  paid 
the  money  over  in  discharge  of  the  bonds  ought  not  to  have  paid  it, 
and  may  now  be  called  on  to  pay  it  back ;  as  between  them  and 
the  company,  the  money  must  be  considered  as  being  still  in  their 
hands.  If  the  transaction  is  to  be  considered  merely  as  between 
the  obligors  and  the  obligees,  the  latter  not  refusing  the  money 
from  whatever  hands  it  came,  but  not  entangling  themselves  in  any 
contracts  between  the  obligors  and  the  company,  then  the  obligees 
would  not  be  affected  by  those  contracts.  But  if  so,  still  the  case 
depends  upon  the  validity  of  the  bonds ;  for  I  think  the  Vauxhall 
Bridge  Company  may  with  propriety  say,  if  the  money  was  paid  in 
consequence  of  an  arrangement  for  the  discharge  of  the  bonds,  and 
if  the  bonds  were  bad,  that  then  it  may  be  called  back.  When  the 
cause  was  heard  by  the  Vice-Chancellor,  he  *  did  that  which  he  was 
not  bound  to  do ;  for  he  certainly  had  jurisdiction,  and  might  have 
decided  upon  the  validity  of  the  bonds.  But  he  directed  that  to 
be  tried  at  law,  where  all  the  objections  may  be  raised  upon  the 
pleadings  in  the  same  manner  as  here ;  and  considering  that  in 
matters  of  this  nature,  both  courts  of  law  and  equity  have  jurisdic- 
tion exercised  upon  the  same  principles,  I  do  not  see  any  occasion 
to  vary  the  decree." 

SECTION    VIL 

Contracts  of  the  Promoters  enforced  in  Equity. 

1-8.    C(ue  of  Edwards  v.  Grand  Junction  Railway. 

§  8.  1.  Edwards  v.  The  Grand  Junction  Railway,^  is  an  appli- 
cation to  a  court  of  equity  to  enforce  such  a  contract  against  a 
railway  company,  whose  charter  was  obtained  by  means  of  the 
quieting  opposition  in  parliament,  in  conformity  to  the  contract. 

•  1  My.  &  Cr.  650. 

•20 


\ 


20  PRELIMINARY  ASSOCIATIONS.  CH.  H. 

The  trustees  of  a  turnpike  road  were  opposing  in  parliament  the 
grant  to  the  defendants,  unless  their  rights  were  guaranteed  in 
such  grant.  The  promoters  of  defendants'  charter,  and  the  trustees 
of  the  turnpike  road,  came  to  an  agreement  in  regard  to  the  proper 
indemnity  to  be  inserted  in  the  act,  but  to  save  delay  it  was  secured 
by  way  of  contract,  on  the  part  of  the  promoters,  providing  for  a 
renewal  of  the  covenants,  on  the  part  of  the  company,  in  a  brief 
time  specified,  after  it  should  go  into  operation.  The  controversy 
in  the  present  case  was  with  reference  to  the  width  of  a  bridge,  by 
which  the  railway  proposed  to  convey  the  turnpike  road  over  their 
track.  The  contract  stipulated  that  such  viaducts  should  be  of  the 
same  width  as  the  road  at  that  point,  which  was  fifty  feet.  The 
charter  only  required  them  to  be  of  the  width  of  fifteen  feet,  and 
the  company  having  declined  to  assume  the  contract  of  the  promo- 
ters, were  proceeding  to  build  the  bridges  thirty  feet  wide  only. 
The  bill  prayed  an  injunction,  which  was  granted  by  the  vice-chan- 
cellor, and  confirmed  by  the  chancellor,  who  held  that  an  agree- 
ment to  withdraw  or  withhold  opposition  to  a  bill  in  parliament  is 
not  illegal ;  and  a  court  of  *  equity  will  enforce  a  contract  founded 
upon  such  a  consideration  ;  and  that  an  incorporated  company  will 
be  bound  by  the  agreement  of  its  individual  members,  acting,  before 
incorporation,  on  its  behalf,  if  the  company  had  received  the  full 
benefit  of  the  consideration,  for  which  the  agreement  stipulated,  in 
its  behalf.  The  opinion  of  the  Lord  Chancellor  will  best  show  the 
grounds  of  the  decision.  "  But  then  the  railway  company  contend 
that  they,  being  now  a  corporation,  are  not  bound  by  any  thing 
which  may  have  passed,  or  by  any  contract  which  may  have  been 
entered  into  by  the  projectors  of  the  company  before  their  actual 
incorporation. 

2.  "  If  this  proposition  could  be  supported,  it  would  be  of  ex- 
tensive consequence  at  this  time,  when  so  much  property  becomes 
every  year  subjected  to  the  power  of  the  many  incorporated  com- 
panies. The  objection  rests  upon  grounds  purely  technical,  and 
those  applicable  only  to  actions  at  law.  It  is  said  that  the  company 
cannot  be  sued  upon  this  contract,  and  that  Moss  entered  into  a 
contract,  in  his  own  name,  to  get  the  company,  when  incorporated, 
to  enter  into  the  proposed  contract.  It  cannot  be  denied,  however, 
that  the  act  of  Moss  was  the  act  of  the  projectors  of  the  railway ; 
it  is,  therefore,  the  agreement  of  the  parties  who  were  seeking  an 
act  of  incorporation,  that,  when  incorporated,  cei'tain  things  should 
•21 


§  8.  CONTRACTS   ENFORCED   IN   EQUITY.  21 

be  done  by  them.  But  the  question  is,  not  whether  there  be  any 
binding  contract  at  law,  but  whether  this  court  will  permit  the 
company  to  use  their  powers  under  the  act,  in  direct  opposition  to 
the  arrangement  made  with  the  trustees  prior  to  the  act,  upon  the 
faith  of  which  they  were  permitted  to  obtain  such  powers.  If  the 
company  and  the  projectors  cannot  be  identified,  still,  it  is  clear 
that  the  company  have  succeeded  to,  and  are  now  in  possession  of, 
all  that  the  projectors  had  before ;  they  are  entitled  to  all  their 
rights,  and  subject  to  all  their  liabilities.  If  any  one  had  in- 
dividually projected  such  a  scheme,  and  in  prosecution  of  it  had 
entered  into  arrangements,  and  then  had  sold  and  resigned  all  his 
interest  in  it  to  another,  there  would  be  no  legal  obligation  between 
those  who  had  dealt  with  the  original  projector  and  such  purchaser; 
but  in  this  court  it  would  be  otherwise.  So  here  as  the  company 
stand  in  the  place  of  the  projectors,  they  cannot  repudiate  any 
arrangements  *  into  which  such  projectors  had  entered.  They  can- 
not exercise  the  powers  given  by  parliament  to  such  projectors,  in 
their  corporate  capacity,  and  at  the  same  time  refuse  to  comply 
with  those  terms,  upon  the  faith  of  which  all  opposition  to  their 
obtaining  such  powers  was  withheld.  The  case  of  The  East  Lon- 
don Water  Works  Company  v.  Bailey,  4  Bing.  283,  was  cited  to 
prove  that,  save  in  certain  excepted  cases,  the  agent  of  a  corpora- 
tion must,  in  order  to  bind  the  corporation,  be  authorized  by  a 
power  of  attorney ;  but  it  does  not  therefore  follow  that  corporar 
tions  are  not  to  be  affected  by  equities,  whether  created  by  contract 
or  otherwise,  affecting  those  to  whose  position  they  succeed,  and 
affecting  rights  and  property  over  which  they  claim  to  exercise 
control.  What  right  have  the  company  to  meddle  with  the  road  at 
all  ?  The  powers  under  the  act  give  them  the  right ;  but  before 
that  right  was  so  conferred,  it  had  been  agreed  that  the  right 
should  only  be  used  in  a  particular  manner.  Can  the  company 
exercise  the  right  without  regard  to  such  an  agreement  ?  I  am 
clearly  of  opinion  that  they  cannot ;  and  having  before"  expressed 
my  opinion  that  the  contract  is  sufficiently  proved,  it  follows  that 
the  injunction  granted  by  the  vice-chancellor  is  in  my  opinion 
proper,  and  that  this  motion  to  dissolve  it  must  be  refused  with 
costs." 

8.  "  The  case  of  The  Vauxhall  Bridge  Company  v.  Earl  Spen- 
cer, 2  Mad.  356,  Jac.  64  (4  Cond.  Cha.  Rep.  28),  was  cited  for  the 
ti'ustees ;  and  it  certainly  is  a  strong  authority  in  favor  of  their 

•22 


22  PRELIMINARY    ASSOCIATIONS.  CH.  11. 

claim ;  Lord  Eldon  having  in  that  case  expressed  an  opinion,  that 
the  withdrawing  opposition  to  a  bill  in  parliament  might  be  a  good 
consideration  for  a  contract,  and  having  recognized  the  right  of 
an  incorporated  company  to  connect  itself  with  a  contract  made  by 
the  projectors  of  the  company,  before  the  act  of  incorporation.  On 
the  other  hand  Dance  v.  Girdler,  1  Bos.  &  Pull.  N.  R.  34,  was 
cited  for  the  railway  company ;  but  that  was  an  attempt  to  make  a 
surety  liable  beyond  his  contract ;  and  Sir  James  Mansfield,  in  his 
judgment  in  that  case,  relied  much  upon  the  want  of  identity  be- 
tween the  society  with  whom  the  contract  was  made  and  the  cor- 
poration ;  and  the  question  there  was  as  to  a  legal  liability,  not  as 
to  an  equitable  right.  It  was  contended  for  the  railway  company 
that,  to  enforce  this  *  equity  would  be  unjust  towards  the  share- 
holders of  the  company  who  had  no  notice  of  the  arrangement. 
To  this  two  obvious  answers  may  be  made :  first,  that  the  court  can- 
not recognize  any  party  interested  in  the  corporation,  but  must 
look  to  the  rights  and  liabilities  of  the  corporation  itself;  and, 
secondly,  that  there  is  nothing  in  the  effect  of  the  injunction  incon- 
sistent with  the  provisions  of  the  act ;  for  although  the  act  provides 
that  bridges  shall  not  be  less  than  fifteen  feet  in  width,  it  does  not 
provide  that  they  shall  not  be  made  wider.  The  company  might 
under  this  act  clearly  agree  that  this  or  any  other  bridge  should 
be  fifty  feet  wide." 

SECTION    VIII. 
Contracts  of  the  Promoters  binding  upon  the  Company  at  Law. 

1-8.    Case  ofHowden  t.  Simpson. 

§  9.  1.  We  have  next  in  order  of  time  the  important  case  of 
Simpson  v.  Lord  Howden,^  before  the  Master  of  the  Rolls,  and  the 
Lord  Chancellor  on  appeal,  where  it  is  held,  that  equity  will  not 
interfere  to  decree  the  surrender  of  an  illegal  contract,  where  the 
illegality  appears  upon  the  face  of  the  contract,  the  remedy  at  law 
being  adequate.  We  have  then  the  same  case,  at  law,  before  the 
Queen's  Bench ,2  and  decided,  on  full  argument,  where  it  is  held, 
that  a  contract  to  pay  Lord  Howden  £5,000,  in  consideration  of 

'  1  Railway  Cases,  326  (1837)  ;  1  Keen,  683;  3  Mylne  &  Cr.  97. 
»  10  Ad.  «&  EUis,  793. 
*23 


§  9.  CONTRACTS   OP   PROMOTERS  BIND   THE  COMPANY.  23 

his  withdrawing  opposition  to  a  bill  for  incorporating  "  The*  York 
&  North  Midland  Railway  Company,"  he  being  a  peer  in  par- 
liament, and  owning  estates  in  the  vicinity  of  tlie  proposed  line, 
was  illegal,  being  a  fraud  upon  the  legislature.  Tliis  decision  was 
subsequently  reversed  in  the  Exchequer  Chamber.^  The  case  be- 
ing the  leading  case  upon  the  subject,  at  law  *  certainly,  may  require 
a  more  extended  statement.  The  agreement  under  seal,  between 
the  plaintiff  and  defendant,  (the  case  now  standing,  Howden  v. 
Simpson,)  recited  that  a  company  had  been  formed  for  making  a 
railway ;  that  defendants  were  proprietors ;  tliat  a  bill  had  been 
introduced  into  parliament,  according  to  which  the  line  would  pass 
through  plaintiff's  estates  and  near  his  mansion,  and  that  he  was 
a  dissentient,  and  opposed  the  passing  of  the  bill ;  that  defendants 
had  proposed  that,  if  he  would  withdraw  his  opposition,  and  assent 
to  the  railway,  they  would  endeavor  to  deviate  the  proposed  line : 
and  plaintiff  agreed  that,  on  condition  of  the  stipulations  in  the 
agreement  being  performed,  he  did  thereby  withdraw  his  opposi- 
tion and  give  his  assent ;  and  defendants  covenanted  that,  in  case 
the  then  bill  should  be  passed  in  the  then  session,  they  would,  in 
six  months  after  it  received  the  royal  assent,  pay  plaintiff  X5,000 
as  comjMjnsatioa  for  the  damage  which  his  residence  and  estates 
would  sustain  from  the  railway  passing  according  to  the  deviated 
line,  exclusive  of  and  without  prejudice  to  further  compensation  to 
plaintiff,  in  the  event  of  the  deviated  line  not  being  ultimately 
adopted,  and  without  prejudice  to  such  further  compensation  for 
any  damage  as  in  the  agreement  after  mentioned. 

2.   Plaintiff  declared  in  debt,  and  averred  that  he  withdrew  his 
opposition  to  the  bill,  which  passed  into  a  law  in  the  then  session, 

*  The  case  was  reversed  mainly  on  the  ground  that  the  plea  did  not  allege 
that  the  parties,  at  the  time  of  entering  into  the  contract,  intended  to  keep  it 
secret  from  the  legislature.  10  Ad.  &  Ellis,  793 ;  1  Railw.  C.  347.  But  the  Ex- 
chequer Chamber  held  thW  the  agreement  on  the  face  of  it  was  valid,  and  that 
the  plaintiff  was  not  bound  to  communicate  to  the  legislature  the  bargain  he  had 
made  with  the  company,  and  that  a  member  of  the  legislature  could  make  any 
terms  for  the  sale  of  his  land,  and  compensation  for  injury  to  his  comforts  and 
property,  which  it  is  lawful  for  a  private  individual  to  make.  The  judgment  of 
the  Exchefjuer  Chamber  was  affirmed  in  the  House  of  Lords,  on  full  argument, 
before  the  Chancellor,  Lord  Lijwlhursl,  Lord  Brougham,  and  in  the  presence  of 
the  two  chief  justices,  and  ten  of  the  judges.  3  Railw.  Cas.  294 ;  8.  c.  9  CI.  & 
Fin.  61.  But  Lord  Campbell  adhered  to  his  former  opinion  that  the  contract 
must  have  been  held  illegal,  if  it  liad  appeared  that  it  was  an  element  in  the  con- 
tract that  it  should  be  kept  secret,  and  not  commimicatcd  to  parliament. 

•24 


24  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

that  six  months  had  since  elapsed,  but  that  defendants  had  not 
paid  the  £5,000. 

3.  Plea,  that  the  railway,  at  the  time  of  making  the  agreement, 
and  according  to  the  act,  was  intended  to  pass  through  the  lands 
of  divers  individuals  ;  that  the  agreement  was  made  privately  and 
secretly  by  the  parties  thereto,  without  the  consent  or  knowledge 
of  the  said  individuals,  and  was  concealed  from  them  continually 
until  the  act  was  passed,  and  was  not  disclosed  *  to,  or  known  in 
parliament,  and  was  concealed  from  the  legislature  during  the 
passing  of  the  act ;  and  that  plaintiff  at  the  time  of  passing  the 
act  and  still,  was  a  peer  of  parliament. 

SECTION   IX. 

What  Contracts  between  the  Promoters  of  Railways  and  Others 
vnll  he  enforced,  either  in  Law  or  Equity,  against  the  Contract- 
ing Parties  or  the  Company. 

1.    Contract  to  take  land  of  opposing  party.      \  2.    Contract  prejudicial  to  the  public. 

§  10.  1.  Since  the  decision  of  Howden  v.  Simpson,  in  the  Ex- 
chequer Chamber,  and  the  House  of  Lords  (1842),  the  English 
courts  seem  to  have  acquiesced  in  the  principles  there  established, 
until  a  very  recent  period.  The  validity  of  such  a  contract  is 
recognized,  in  regard  to  the  company  purchasing  the  interest  of 
the  lessee  of  lands  near  the  line  of  the  proposed  railway.^  And 
where  the  promoters  of  one  railway  entered  into  an  agreement  with 
a  land-owner  on  the  proposed  line  to  take  his  land  at  a  specified 
price  (20,000Z.),  by  which  he  was  induced  to  withdraw  opposition  ; 
and  the  promoters  of  a  rival  line,  who  proposed  also  to  pass 
through  the  same  land,  had  petitioned  for  a  charter,  and  the  merits 
of  the  two  projects  were,  under  the  sanction  of  the  committee  of 
the  House  of  Commons,  referred  to  arbitration,  and  the  solicitors 
of  the  two  bills  agreed,  that  the  adopted  line  should  take  the  en- 
gagements entered  into  with  the  land-owners,  by  the  rejected  line, 
it  was  held,  that  the  second  company  prevailing,  were  bound,  as  a 
condition  of  entering  upon  the  lands  of  plaintiff,  to  fulfil  the  terms 
of  the  agreement  with  tlie  first  company.'^ 

'  Doo  V.  The  London  and  Croydon  Railway,  1  Railw.  C.  257  ;  s.  c.  3  Jur.  258. 
*  Stanley  v.  The  Chester  and  Birkenhead  Railw.  1  Railw.  C.  68 ;  9  Simons,  264. 
*25 


§  11.  CONTRACTS   OF   PROMOTERS   ENFORCED.  25 

2.  And  where  one  railway  company  was  prohibited  from  open- 
ing their  line  for  traffic,  until  they  had  built  a  branch  railway, 
connecting  their  line  with  that  of  another  company,  it  was  held, 
tliat  a  court  of  equity  was  bound  to  enforce  the  *  prohibition,  on 
motion  of  the  other  company,  though  the  probable  result  would  be, 
to  cause  inconvenience  to  the  public,  and  not  to  benefit  the  other 
company.' 

SECTION   X. 
Courts  of  Equity  loUl  enforce  Contracts  with  the  Promoters. 

1.  Bona  fide  conbrad  not  evading  tiattite,   I  n.  8.   Statement  of  English  cases, 
valid.  I 

§  11.  1.  The  English  courts  of  equity  do  not  hesitate  to  restrain 
railways  from  proceeding  to  take  land  under  their  compulsory 
powers,  where  the  proprietor  of  the  estates  had  surceased  opposi- 
tion to  the  bill,  by  an  arrangement  with  the  projectors,  by  which 
they  stipulated  that  the  company  should  pay  a  certain  sum,  which 
it  had  declined  to  do.  This  was  done  notwithstanding  the  pro- 
prietor was  a  peer  of  parliament,  and  notwithstanding  tiie  tender 
of  an  undertaking,  on  the  part  of  the  company,  not  to  enter  upon 
the  land  until  the  further  order  of  the  court,  and  notwithstanding 
the  time,  within  which  the  company,  by  their  charter,  were  author- 
ized to  take  land  would  have  expired,  before  the  hearing  of  the 
cause.^  And  although  this  case  is  questioned  by  some  writers,^ 
the  learned  Lord  Chancellor  St.  Leonards  said  the  cases  establish 
the  proposition,  that  a  bona  fide  contract  of  this  sort,  not  evading 
the  act  of  parliament,  but  enabling  the  company  to  assist  its  views, 
and  carry  the  act  into  effect,  was  valid,  without  reference  to  the 

reasonableness  of  the  amount  agreed  to  be  paid.^ 
I 

'  Cromford  and  High  P.  Railway  v.  Stockport,  D.  &  W.  Bridge  Railway,  24 
Beav.  74  ;  8.  c.  29  Law  Times,  245. 

•  Lord  Petre  r.  Eastern  Counties  Railway  Co.,  1  Railw.  C.  462. 

•  Shelford,  400. 

•  Hawkes  r.  Eastern  Counties  Railway  Co.,  1  De  G.  M.  &  G.  787;  8.  c. 
16  Eng.  L.  &  Eq,  3,58;  s.  c.  before  the  Vice-Chancellor,  3  De  G.  &  S.  314; 
8.  c.  4  Eng.  L.  &  Eq.  91,  where  it  is  considered  that  a  railway  company, 
having  agreed  to  purchase  an  estate,  although  moved  to  do  so  for  the  quiet- 
ing of  opposition  to  a  bill  before  parliament  to  enable  them  to  extend  a  branch 

•26 


26  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

♦SECTION    XI. 
Sixch  Contracts  eiiforced  where  the  Railway  is  abandoned. 

1.    Where  a  certain  sum  is  to  be  paid  to  quiet  I   2.   Merely  provisional  contracts  not  always 
opposition,  \  enforced. 

§  12.  1.  It  has  sometimes  been  held,  tliat  an  absolute  agree- 
ment made,  by  the  promoters  of  a  railway,  to  pay  one  a  certain 

in  a  certain  direction,  which  was  subsequently  abandoned,  were  nevertheless 
bound  to  perform  their  agreement  with  the  owner  of  the  estate.  See  also 
Shelford  on  Railways,  400.  The  case  of  Hawkes  v.  The  Eastern  Counties 
Railway  Co.  came  before  the  Lord  Chancellor,  St.  Leonards,  on  appeal  from 
the  Vice-Chancellor  in  1852,  where  the  whole  subject  of  the  legality  and  bind 
ing  character  of  this  class  of  contracts  is  learnedly  discussed,  as  well  as  the 
propriety  of  decreeing  specific  performances,  and  most  of  the  cases  elaborately 
and  learnedly  reviewed  and  compared.  The  conclusion  to  which  that  eminent 
judge  arrives  is,  that  even  in  a  case  where  the  company  were  not  able  to  carry 
their  project  into  full  effect,  but  had  abandoned  it,  they  were  nevertheless  bound 
specifically  to  perform  contracts  of  this  kind,  and  that  it  was  no  objection  to  de- 
creeing specific  performance,  that  it  would  involve  the  necessity  of  paying  the 
price  of  the  land  out  of  the  general  funds  of  the  company,  which  had  been  raised 
for  provisional  purposes  merely,  and  with  no  view  of  ultimately  purchasing  land 
and  building  the  road ;  and  that  the  land  could  be  of  no  use  to  the  company 
under  present  circumstances.  One  can  scarcely  fail  to  perceive  in  this  case,  that 
a  principle,  perhaps  sound  and  just  under  some  circumstances,  is  here  pushed 
quite  to  its  extreme  verge.  Damages  at  law  might  have  been  the  more  proper 
disposition  of  all  interests  concerned. 

The  opinion  of  the  Lord  Chancellor  is  a  masterly  exposition  of  the  view  which 
he  adopts.  After  disposing  of  the  preliminary  questions  he  proceeds:  "In  the 
case  of  Webb  v.  The  Direct  London  and  Portsmouth  Railway,  1  De  G.  M.  &  G. 
621 ;  s.  c.  9  Eng.  L.  &  Eq.  249,  there  was  originally  a  decree  for  specific  perform- 
ance, and  after  the  decision  in  this  case  was  made,  —  the  court  having  relied  on 
that  case,  —  that  decision  was  reversed.  Now  it  appears  to  me  that  that  case  was 
reversed  upon  the  uncertainty  of  the  contract ;  and  if  it  was  reversed  upon  any 
other  ground,  I  should  have  required  further  time  before  I  could  accede  to  the 
doctrine  that  a  company  entering  into  such  a  contract  as  this  is,  could,  upon  any 
grounds  of  supposed  illegality,  get  rid  of  the  contract.  If,  as  in  some  of  these 
cases,  several  of  which  have  been  cited,  the  contract  is  so  worded  that  it  really  de- 
pends upon  this,  that  the  company  are  not  to  pay  unless  they  require  the  land ;  that 
is,  they  are  to  pay  when  they  take  the  land,  which  assumes  that  they  are  not  to  pay 
unless  they  do  take  the  land,  that  may  be  considered  a  conditional  contract.  I 
have  nothing  to  say  to  such  cases ;  but  where,  as  in  this  case,  it  is  an  absolute  and 
un([ualified  contract  to  take  the  land,  I  should  certainly  hold  that  no  subsequent 
conduct  on  the  part  of  the  company  could  relieve  them  from  the  obligation  they 
were  bound  by  at  the  time  they  entered  into  it.  The  act  of  parliament  having 
*27 


§12.  CONTRACTS   ENFORCED   IP   RAILWAY  ABANDONED.  27 

•sum  to  quiet  opposition,  is  valid,  notwitlistanding  the  contem- 
plated work  is  never  carried  forward,  and  the  injnrj  to  the  op- 
passed,  this  was  as  good  a  contract  as  a  man  ever  entered  into.  I  must  look  at  it 
at  the  time  when  it  was  executed,  at  all  events,  at  the  time  the  act  passed.  It 
contemplated  the  act  passing,  and  the  act  did  pass  exactly  in  the  tenns  pointed  out 
in  the  agreement.  Well,  then,  it  is  a  valid  contract.  Suppose,  as  was  observed 
in  argument  very  properly,  suppose  this  agreement  had  been  entered  into  after 
the  passing  of  the  act,  would  any  man  at  the  bar  say  that  was  a  contract  not  to 
be  executed  ?  Looking  at  the  authorities  which  have  concluded  that  question, 
why  should  it  not  be  as  binding,  being  entered  into  before  the  act  passed,  as  it 
must  be  admitted  it  would  have  been  if  executed  immediately  after  the  act 
passed?  There  is  no  magic  in  these  things.  The  good  faith,  the  truth,  and  the 
honesty  of  the  transaction  are  to  be  looked  at,  there  is  no  nde  of  law  in  it.  K, 
therefore,  Webb  v.  The  Direct  London  and  Portsmouth  Railway  Company  is 
considered  to  decide  any  thing  adverse  to  the  decision  in  this  case,  I  should 
support  the  decision  of  this  case,  as  far  as  my  authority  went.  With  great 
deference  to  others,  I  should  support  this  decision  certainly  at  the  expense  of 
the  contrarj*  view,  that  is,  contrary  to  the  view  taken  on  that  appeal,  if  that  were 
to  be  so ;  but  I  apprehend  it  turned  on  the  uncertainty  of  the  contract.  In 
Lord  James  Stuart  v.  The  London  and  Northwestern  Railway  Company,  the 
Master  of  the  Rolls  there  decreed  a  specific  performance,  upon  the  authority  of 
Webb  V.  The  Direct  London  and  Portsmouth  Railway  Company,  before  it  was 
reversed.  It  was  said  that  the  reversal  of  that  therefore  displaced  his  authority. 
That  also  was  reversed.  There  again  were  two  questions :  first,  a  question 
whether  there  was  any  concluded  agreement,  any  binding  agreement,  any  thing 
amounting  to  a  positive  contract ;  and  next,  there  was  great  delay.  Those 
cases  were  relied  upon,  and  I  can  only  repeat  that  I  am  not  saying  either  of  those 
decisions  was  not  a  proper  decision,  and  I  am  not  called  upon  to  say  that ;  but  I 
say,  if  they  are  to  be  considered  in  opposition  to  a  specific  performance  in  a  case 
like  that  before  me,  that  I  should  totally  disagree  with  them.  It  is  a  new  view 
of  the  doctrine  of  this  court,  and  it  is  a  view  which  could  not  be  supported  con- 
sistently with  the  many  authorities  which  exist  on  this  subject. 

"Then  it  is  argued  with  great  force  and  insisted  upon  that  there  is  illegality 
here,  because  the  company  is  applying  its  funds  to  purposes  not  authorized  by 
the  act  of  parliament.  Now,  for  that  several  cases  were  quoted.  MacGregor  v. 
The  Dover  and  Deal  Railway  Company,  18  Q.  B.  618;  8.  c.  17  Jur.  21 ;  8.  c. 
16  Eng.  L.  &  Eq.  180;  East  Anglian  Railway  Company  v.  Eastern  Counties 
Railway,  11  C.  B.  775;  8.  c.  21  Law  J.  Rep.  (n.  s.)  C.  P.  23;  s.  c.  7  Eng.  L. 
&  Eq.  505 ;  and  the  case  of  Bagshawe  v.  The  Eastern  Union  Railway  Company, 
2  Hall  &  Tw.  201 ;  s.  c.  2  Mac.  &  Gor.  ;389.  Those  were  all  cases  in  which 
the  company  were  really  going  ])eyond  their  powers  ;  and  one  cannot  but  lament 
to  see  great  companies  like  these,  with  an  attorney  always  at  their  command, 
with  every  means  of  consulting  counsel  daily  if  they  think  proper,  and  which 
they  resort  to  sufficiently,  and  with  enonnous  capital,  entering  into  a  contract, 
with  a  full  knowledge  of  all  their  powers,  and  with  legal  advice  con.stantly  at 
command,  turning  round  upon  the  party  with  whom  they  have  contracted,  and 
endeavoring  to  evade  the  contract  upon  the  ground  that  the  contract  they  entered 


28  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

*  poser,  which  the  contract  of  quietus  assumes,  is  never  sus- 
tained.^   But  such  a  contract  is  certainly  based  upon  a  principle 

into  is  beyond  their  powers  and  absolutely  illegal  on  the  face  of  it.  One  can- 
not but  regret  that  these  companies  should  resort  to  so  unseemly  a  defence  in 
courts  of  justice.  I  do  trust  we  shall  not  hear  of  many  more  of  these  cases,  but 
that  these  companies  will  take  care  that  in  entering  into  contracts  with  indi- 
viduals who  are  not  so  well  protected,  they  do  not  go  beyond  their  powers,  and 
one  cannot  but  feel  that  they  do  not  enter  into  a  contract  of  this  sort,  if  it  be 
illegal,  without  being  perfectly  aware  of  its  illegality.  Nothing  can  be  more 
indecent  than  for  a  great  company  to  come  into  a  court  of  justice,  and  to  say 
that  a  contract  —  a  solemn  contract  which  they  have  entered  into  —  is  void  on 
the  ground  of  its  not  being  within  their  powers,  not  from  any  subsequent  acci- 
dent, not  from  any  mistake  or  misapprehension,  but  because  they  thought  fit  to 
enter  into  it  and  meant  to  have  the  benefit  of  it,  if  it  turned  out  for  their  benefit, 
and  to  take  advantage  of  the  illegality  in  case  the  contract  should  prove  onerous 
and  they  should  desire  to  get  rid  of  it.  Such  highly  dishonorable  conduct  I 
trust  we  shall  not  often  see  in  courts  of  justice. 

"  Now,  these  cases  last  referred  to,  it  is  not  proper  for  me  to  find  fault  with. 
They  are  cases  in  which  it  appears  that  the  company  did  enter  into  engagements 
clearly  beyond  their  powers,  and  the  parties  contracting  with  them  must  be 
supposed  to  have  known  that.  It  has  been  decided  that  they  cannot  be  enforced, 
and  I  have  nothing  to  say  against  those  decisions ;  but  this  case  does  not  fall 
within  those  decisions.  There  is  nothing  that  has  been  stated  to  me  of  any  sort, 
or  kind,  excepting  this :  That  a  Mr.  Duncan,  in  part  of  his  evidence,  refers  to 
the  intention  of  the  parties  to  form  a  junction  with  the  Ambergate  line,  and  in 
that  way  going  right  through  the  plaintiff's  property,  they  being  unable  otherwise 
to  get  at  the  point  which  they  proposed  to  get  at  by  the  curvilinear  diverging 
line,  which  parliament  rejected.  Then  they  say,  it  is  a  fraud  on  the  act  of 
parliament.  There  is  no  such  thing  in  the  contract,  —  no  such  thing  in  the 
answer.  This  court  has  not  permitted  any  evidence  to  be  given  on  a  point  of 
defence  that  was  not  raised  in  the  answer;  because  if  it  had  been  raised, 
Mr.  Hawkes  could  have  shown  there  was  no  foundation  for  it.  I  believe  there 
is  no  foundation.  I  believe  that  the  company  had  in  view  that  they  might,  by 
this  short  cut  through  Mr.  Hawkes's  property,  get  to  a  certain  point;  but 
Mr.  Hawkes  had  nothing  to  do  with  that.  The  act  provided  for  taking  this 
property  for  the  very  purpose  authorized  by  the  act  of  parliament  itself.  The 
cases,  therefore,  do  not  touch  this  question  at  all,  and,  consequently,  I  am  not 
embarrassed  by  their  authority. 

"Then  it  is  said,  there  is  no  mutuality;  and,  therefore,  that  the  company 
could  not  enforce  it,  because  they  have  no  means  of  carrying  the  railway  on ;  and 
that  involves  also  the  question  of  the  expiration  of  the  time.  I  have  already 
referred  to  authority  to  show  that  expiration  of  time  in  a  case  of  this  sort  amounts 
to  nothing,  where,  as  in  this  case,  it  is  the  fault  of  the  company  itself  that  the 
time  has  been  allowed  to  expire.     They  have  thought  proper  to  allow  time  to 


»  Bland  c.  Crowley,  6  Railw.  C.  766 ;  6  Exct.  622. 
•29 


§  12.  CONTRACTS   ENFORCED   IF   RAILWAT   ABANDONED.  29 

*of  very  questionable  policy,  and  courts  would  more  incline  to 
give  .the  contract,  when  consistent  with  the  words  used,  such  a 

expire.  Their  conduct,  upon  this  correspondence,  admits  of  no  excuse.  With 
full  knowledge  of  all  they  intended  to  do,  they  are  told  the  deeds  are  ready  to 
be  examined  with  the  abstracts  ;  they  make  an  appointment  to  go  down,  without 
raising  a  word  of  complaint,  to  examine  the  abstracts  with  the  deeds.  They 
break  that  appointment.  They  make  no  other  appointment.  They  are  told  that 
the  vendor  has  vacated  the  possession  of  the  property,  and  that  it  is  at  their  dis- 
posal, and  that  he  has  sought  another  residence,  as  he  must  necessarily  have 
done,  and  then  they  serve  a  formal  notice,  telling  him  they  will  have  nothing  to 
do  with  the  contract ;  that  they  do  not  want  the  property,  and  do  not  mean  to 
make  the  line.  What  has  mutuality  to  do  with  it?  There  are  many  cases  where 
the  court  has  not  looked  to  the  doctrine  of  mutuality  as  it  ought  to  have  done, 
and  has  inferred  a  contract  against  a  party  where  tliat  party  could  not  have 
sufficiently  enforced  a  contract  against  any  one  else.  Those  are  cases  of  great 
hardship ;  but  here  I  must  look  at  this  contract  at  the  time  the  act  of  parliament 
was  passed,  and  at  the  time  it  was  entered  into.  Where,  then,  is  there  any  want 
of  mutuality?  Could  not  the  company,  within  an  hour  afler  the  act  passed,  have 
enforced  the  contract  against  Mr.  Hawkes  ?  Nobody  disputes  or  doubts  it. 
Where,  then,  is  the  want  of  mutuality  ?  It  is  not  because  a  man,  subsequently  to 
the  contract,  chooses  to  introduce  impediments  to  the  performance  of  the  con- 
tract on  his  own  part,  but  it  is  where  it  is  impossible  to  do  that  which  he  had 
contracted  for ;  and  he  cannot,  therefore,  turn  round  against  the  man  with  whom 
he  has  contracted,  and  throw  upon  that  man  the  loss.  Who  is  to  bear  the  loss 
in  this  case?  The  company  say  the  loss  is  to  fall  upon  Mr.  Hawkes.  Who 
is  to  blame?  The  company;  not  Mr.  Hawkes.  The  company,  therefore, 
modestly  desire,  in  consequence  of  their  own  act,  in  breaking  this  agreement 
as  they  have  done,  and  rejecting  the  line  after  they  had  obtained  authority  to 
make  it,  throwing  up  the  line  and  endeavoring  to  repudiate  their  solemn  con- 
tract, that  the  whole  loss  and  burden  is  to  be  thrown  on  the  party  who  is  not  to 
blame.  Fortunately  the  law,  justice,  and  equity  of  the  case  are  agreed.  There 
is  nothing  to  prevent  my  enforcing  the  contract  in  the  case. 

'*  Then  certain  other  cases  were  cited,  as  showing  I  ought  not  to  interfere  to 
enforce  performance  of  the  contract.  Gage  ».  The  Newmarket  llailway  Com- 
pany, 18  Q.  B.  457 ;  8.  c.  21  Law  J.  Rep.  (n.  s.)  Q.  B.  398 ;  8.  c.  14  Eng.  L. 
&  £q.  57,  was  one.  That  seems  also  to  turn  on  the  conditional  agreement. 
There  was  an  agreement  there,  that  the  company,  before  they  entered  on  the  land 
which  they  might  require,  should  pay,  and  it  was  considered  there  was  no  abso- 
lute agreement  to  pay.  No  doubt,  the  Lord  Chief  Justice  said,  if  there  had  been 
a  covenant  to  pay,  or  a  covenant  to  pay  a  sum  as  a  sum  in  gross,  that  the  court 
would  have  treated  it  as  void.  The  case  was  not  before  the  court ;  but  they 
evidently  considered  it  within  the  other  cases,  where  they  had  held  that  the  com- 
pany could  not  bind  itself  beyond  its  powers.  It  required  great  consideration 
how  far  that  doctrine  should  be  carried.  I  dare  say  it  will  be  necessary  that  it 
should  be  ultimately  carried  elsewhere  before  it  can  be  finally  decided.  It  is  a 
great  and  serious  question  how  far  these  companies  can  be  allowed  to  enter  info 
contracts  solemnly  under  their  seal,  and  then  turn  round  upon  the  parties  and 

•30 


30  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

•construction,  that  it  shall  be  the  purchase  of  a  pecuniary  inter- 
est, or  indemnification  for  a  pecuniary  loss,  which  are  legitimate 

say  they  have  exceeded  their  powers,  and,  consequently,  will  not  perform  their 
contract.  Then  in  the  other  case  of  Gooday  r.  The  Colchester  and  Stour  Val- 
ley Railway  Company,  17  Beav.  132 ;  s.  c.  19  Law  Times,  334 ;  s.  c.  15  Eng. 
L.  &  Eq.  596,  there  was  no  agreement  binding  upon  the  company. 

"  I  can  find  no  authority  upon  the  subject,  (and  I  have  looked  carefully 
through  every  thing  which  has  been  cited,  and  I  postponed  disposing  of  the  case 
in  order  that  I  might  have  that  opportunity,)  to  shake  the  opinion  I  entertained 
when  the  argument  was  closed,  that  this  is  a  very  clear  case  for  specific  per- 
formance. I  am  very  glad  that  the  law  turns  out  to  be  consistent  with  the  equity 
of  the  case ;  and,  therefore,  I  dismiss  this  appeal,  and  with  costs." 

This  case  was  affirmed  in  the  House  of  Lords,  5  House  Lds.  331 ;  s.  c.  35 
Eng.  L.  &  Eq.  8,  and  elaborate  opinions  delivered,  by  the  Lord  Chancellor  Cran- 
worth.  Lord  Campbell,  and  Lord  St.  Leonards.  The  case  is  obviously  put  some- 
what upon  the  ground  of  the  peculiar  state  of  facts  involved.  1.  It  is  a  contract 
under  the  seal  of  an  existing  company,  and  not  the  contract  of  the  projectors  of 
a  contemplated  company  merely.  2.  Although  the  contract  had  respect  to  an 
extension  of  the  existing  line,  by  means  of  a  branch  line,  which,  as  to  the  exist- 
ing shareholders,  the  company  had  no  right  to  construct,  and  even  with  the  con- 
sent of  the  legislature  could  not  construct,  with  funds  of  the  existing  company, 
yet  nothing  of  this  seems  to  have  been  known  to  Mr.  Hawkes.  He  does  not 
seem  to  have  been  made  aware  of  any  purpose  of  the  company  to  do  any  act 
beyond  their  powers,  or  in  conflict  with  the  rights  of  the  shareholders. 

These  several  points  are  tlius  stated  in  the  notes  of  the  case :  — 

Where  an  act  creating  a  railway  company,  or  giving  new  powers  to  an  exist- 
ing company,  authorizes  the  purchase  of  lands  for  extraordinary  purposes,  a 
person  who  agrees  to  sell  his  land  to  the  company  is  not  bound  to  see  that  it  is 
strictly  required  for  such  purposes ;  if  he  does  not  know  of  any  intention  to  mis- 
apply the  funds  of  the  company,  but  acts  bona  fide  in  the  matter,  he  may  enforce 
performance  of  the  contract. 

Semble,  That  where  the  directors  of  a  railway  company,  wanting  part  of  a 
property,  purchase  more  of  it  than  is  required,  though  that  may  become  a  ques- 
tion between  them  and  the  shareholders,  they  cannot  on  that  account  avoid  the 
contract  with  the  seller. 

Promoters  of  a  company  to  make  a  line  of  railway,  or  persons  standing  in  a 
similar  situation,  as  directors  of  an  existing  company,  applying  to  parliament  for 
authority  to  make  a  new  line,  may  lawfully  enter  into  a  contract  for  land  that 
will  be  necessary  for  the  proposed  line  should  the  bill  pass,  and  when  it  has 
passed,  such  contract  will  be  valid,  and  may  be  enforced.  The  mere  want  of 
legal  power  to  make  the  contract  at  the  moment  of  entering  into  it,  will  not  affect 
its  validity  afterwards.  Secus,  where  the  act  itself  is  illegal,  and  parliament  is 
to  be  asked  to  legalize  it. 

Where  a  contract  for  the  purchase  of  land  is  made  by  the  projectors  of  a  pro- 
posed line  of  railway,  though  an  action  at  law  may  be  maintained  upon  the  con- 
tract, a  court  of  equity  will  not,  simply  on  that  account,  refuse  its  interference  to 
compel  specific  performance. 
♦31 


§  12.     CONTRACTS  ENFORCED  IP  RAILWAY  ABANDONED.       31 

*  subjects  of  bargain  and  sale,  than  to  regard  it,  as  the  purchase 
of  good-will,  or  the  price  of  converting  ill-will  unto  favor,  which 

Under  the  first,  head,  the  following  suggestions  of  Lord  Chancellor  Crantcorth 
are  of  interest :  "A  railway  company  cannot  devote  any  part  of  its  funds  to  an 
object  not  within  the  scope  of  its  original  constitution,  how  beneficial  soever  that 
object  might  seem  likely  to  prove. 

'•Thus  in  Colman  v.  The  Eastern  Counties  Railway  Company,  10  Beav.  1; 
4  Railw.  C.  513 ;  Lord  Langdale,  at  the  instance  of  a  sharehorder,  restrained  the 
company  and  its  directors  from  applying  any  part  of  their  funds  in  assisting  a 
company  which  had  been  formed  for  establishing  a  steam  communication  between 
Harwich  and  the  northern  ports  of  Europe.  The  directors  of  the  railway  com- 
pany thought  that  such  an  application  of  a  part  of  their  funds  would  be  likely 
materially  to  promote  the  interests  of  their  shareholders,  by  encouraging  and  in- 
creasing the  trallic  on  their  line.  But  Lord  Langdale,  though  admitting  that 
such  an  expenditure  might  ver}-  likely  conduce  to  the  interest  of  the  railway 
company,  yet  restrained  the  directors  by  injunction  from  so  applying  any  part 
of  their  funds,  on  the  ground  that  they  had  no  right  to  expend  the  money  of  the 
company  on  any  project  not  directly  within  the  terms  of  its  incorporation. 

"  In  Salomons  r.  Laing,  12  Beav.  839,  the  same  learned  judge  restrained  the 
directors  of  the  South  Coast  Railway  Company  from  applying  -any  part  of 
the  funds  of  that  company  in  the  purchase  of  shares  of  another  company  (the 
Portsmouth),  by  which  purchase  the  defendants  hoped  to  benefit  the  company 
of  which  they  were  directors.  The  court  held  that  the  defendants  had  no  right 
to  deal  with  the  funds  in  a  manner  not  authorized  by  their  act. 

'*  The  same  principle  was  recognized  and  acted  upon  by  Sir  James  Wigram 
and  Lord  Cottenham  in  Bagshawe  r.  The  Eastern  Union  Railway  Company,  2 
Mac.  &  G.  389 ;  8.  c.  2  Hall  &  T.  201 ;  6  Railw.  C.  152.  There  the  legislature 
had  authorized  the  defendants  to  raise,  by  way  of  additional  shares,  two  sums  of 
£200,000  and  £100,000,  the  former  for  the  purpose  of  enabling  them  to  con- 
struct a  branch  line  to  Harwich,  and  the  latter  for  enabling  them  to  purchase 
and  complete  a  cross  line  to  Hadleigh.  The  plaintiff  had  purchased  scrip  certifi- 
cates for  shares  in  these  undertakings,  or  one  of  them,  on  which  all  calls  had  been 
paid,  and  he  stated  by  his  bill,  that  the  directors,  though  the  whole  of  the  two 
sums,  £200,000  and  £100,000  had  been  raised,  yet  had  abandoned  the  intention 
of  constructing  the  Harwich  line,  and  were  about  to  apply  the  sums  so  raised 
to  the  completing  of  their  line  from  Ipswich  to  Norwich.  The  bill  prayed, 
amongst  other  things,  a  general  account  of  all  sums  so  applied,  that  the  directors 
might  be  decreed  personally  to  make  them  good,  and  for  an  injunction  to  restrain 
any  further  similar  application  of  any  part  of  the  said  two  sums  of  £200,0*30  and 
£100,000,  To  this  bill  there  was  a  general  demurrer,  but  it  was  overruled,  first 
by  Sir  James  Wigram,  and  afterwards,  on  appeal,  by  Lord  Cottenham ;  the 
ground  of  the  decision  there,  as  in  the  other  cases,  being  that  the  directors  had 
no  right  to  expend  any  part  of  the  sums  raised  for  a  special  purpose  upon  any 
other  object  than  that  for  which  they  were  so  raised. 

"  In  all  these  cases,  the  discussion  was  raised  by  shareholders  calling  in  ques- 
tion the  misapplication  or  intended  misapplication  of  the  corporate  i'unds  by  the 
directors.     But  the  doctrine  has  been  acted  on  in  the  courts  of  common  law  to 

•82 


32  PRELIMINARY  ASSOCIATIONS.  CH.  II. 

•are  certainly  not  regarded  ordinarily  as  the  just  basis  of  con- 
tracts.2 

the  extent  of  holding  that  a  contract,  even  under  the  seal  of  a  company,  cannot 
in  general  be  enforced,  if  its  object  is  to  cause  the  corporate  property  to  be  di- 
verted to  purposes  not  within  the  scope  of  the  act  of  incorporation.  Thus,  in  the 
case  of  The  East  Anglian  Railway  Company  v.  The  Eastern  Counties  Railway  • 
Company,  11  C.  B.  803 ;  s.  c.  7  Eng.  L.  &  Eq.  505,  the  Court  of  Common  Pleas, 
after  an  elaborate  argument,  held  that  no  action  could  be  maintained  against  the 
defendants  on  a  covenant  into  which  they  had  entered  for  pa}'ment  to  the  plain- 
tiffs of  the  costs  incurred  in  applications  to  parliament,  made  at  the  instance  of 
the  defendants,  for  obtaining  from  the  legislature  powers  which  the  defendants 
considered  it  desirable  for  their  interests  that  the  plaintiffs  should  possess.  The 
Chief  Justice,  in  delivering  the  judgment  of  the  court,  says,  (11  C.  B.  809; 
s.  c.  7  Eng.  L.  &  Eq.  510,)  '  The  statute  incorporating  the  defendants'  company, 
gives  no  authority  respecting  the  bills  in  parliament  promoted  by  the  plaintiffs, 
and  we  are  therefore  bound  to  say,  that  any  contract  relating  to  such  bills  is  not 
justified  by  the  act  of  parliament,  is  not  within  the  scope  of  the  authority  of  the 
company  as  a  corporation,  and  is  therefore  void.' 

"  This  case  was  afterwards  recognized  and  acted  on  by  the  Exchequer  Cham- 
ber, in  the  case  of  MacGregor  r.  The  Official  Manager  of  the  Deal  &  Dover 
Railway  Company,  18  Q.  B.  618 ;  s.  c.  16  Eng.  L.  &  Eq.  180.  It  must,  there- 
fore, be  now  considered  as  a  well-settled  doctrine,  that  a  company,  incorporated 
by  act  of  parliament  for  a  special  purpose,  cannot  devote  any  part  of  its  funds  to 
objects  unauthorized  by  the  terms  of  its  incorporation,  however  desirable  such 
an  application  may  appear  to  be. 

"  I  have  referred  to  these  cases,  and  there  are  others  to  the  same  effect,  for 
the  purpose  of  showing  how  firmly  the  law  on  this  subject  is  established,  and  of 
guarding  myself  against  being  supposed  to  throw  any  doubt  upon  it.  But  I  do 
not  think  that  the  present  ease  comes  within  the  principle  on  which  these  de- 
cisions have  rested.  The  making  of  the  Wisbeach  &  Spalding  Branch  was  not 
treated  by  the  legislature  as  a  new  and  independent  object  to  be  carried  into 
execution  by  distinct  funds  raised  for  that  special  purpose.  The  power  to  make 
the  new  line  was,  according  to  the  construction  I  put  on  tlie  act,  merely  an  ad- 
dition to  the  powers  conferred  by  the  former  acts.  So  that  after  the  Wisbeach 
&  Spalding  act  came  into  operation,  the  rights  and  powers  of  the  company  were 
to  be  regarded  as  if  they  had  originally  been  powers,  to  make  the  new  line  and  to 
raise  the  additional  capital.  The  new  works  were  to  be  considered  as  having 
formed  part  of  the  original  undertaking,  and  the  new  shares  were  to  be  considered 
as  part  of  the  general  capital.  From  the  time,  therefore,  when  the  Wisbeach  & 
Spalding  bill  received  the  royal  assent,  (and  until  that  happened  there  was  no 
binding  contract,)  the  directors  had  just  the  same  right  to  apply  their  funds  to 


•  Gage  V.  Newmarket  Railway  Co.,  18  Q.  B.  457  ;  s.  c.  7  Railw.  C.  168 ;  8.  c. 
14  Eng.  L.  &  Eq.  57 ;  Porcher  v.  Gardner,  14  Jur.  43 ;  19  L.  J.  63 ;  8  C.  B. 
461 ;  Shelford  on  Railways,  402.  See  also  Cumberland  Valley  Railway  Co.  v. 
Baab,  9  Watts,  458;  Hawkes  v.  Eastern  Counties  Railway  Co.,  1  De  G.  M.  & 
G.  737 ;  8.  c.  3  De  G.  &  S.  314 ;  7  Railw.  Cases,  219 ;  8.  c.  4  Eng.  L.  &  Eq.  91. 
•88 


§  12/  CONTRACTS  BT   PROMOTERS   FOR  LAND.  33 

*  2.  But  in  many  cases  these  provisional  contracts  have  been 
enforced,  notwithstanding  the  projected  works  have  been  aban- 

the  purchase  of  land  for  the  purposes  of  the  new  line,  as,  before  the  passing 
of  that  act,  they  had  for  the  purchasing  of  land  for  the  original  line.  This  con- 
sideration, therefore,  seems  to  me  clearly  to  distinguish  the  present  case  from  all 
those  cases  cited  in  the  argument.  The  contract  here  was  to  apply  the  funds 
of  the  company  to  a  purchase  within  the  scope  of  its  incorporation,  and  not  to 
any  purposes  foreign  to  it,  and  I  see  no  objection,  therefore,  to  the  contract  on 
this  first  ground. 

"But  it  was  argued,  secondly,  that  even  supposing  the  contract  not  to  be  open 
to  objection  on  the  ground  of  its  being  an  attempt  to  appropriate  the  company's 
funds  to  an  object  foreign  to  their  original  purposes,  still,  that  it  could  not  be 
supported,  inasmuch  as  it  was  an  agreement  to  purchase,  for  the  new  railway, 
lands  not  wanted  for  the  purpose  of  making  it.  The  directors  had  originally 
desired  to  obtain  powers  to  make  a  staight  cut  from  their  new  line  to  join  the 
Ambergate,  Nottingham,  &  Boston  Railway,  and  for  that  purpose  it  would  have 
been  essential  to  them  to  possess  the  plaintifTs  land,  but  they  failed  in  their 
object  of  obtaining  power  to  form  this  straight  cut,  and  then  there  was  not,  it 
was  said,  any  necessity  for  them  to  get  possession  of  the  plaintiflTs  land.  A  small 
portion  only  of  it,  about  an  acre  and  a  half,  is  within  the  line  of  deviation,  and  it 
was  argued  that  a  contract  to  purchase  the  whole,  (nearly  six  acres,)  was  a  con- 
tract ultra  vires,  inasmuch  as  the  company  could  only  purchase  what  was  really 
necessary  or  proper  for  the  construction  of  the  line.  But  the  answer  to  this 
argument  appeared  to  me  satisfactory.  The  contract  was  not  necessarily,  and 
on  the  face  of  it,  tdtra  vires.  If  the  land  in  question  was  really  wanted  by  the 
appellants  for  what  are  called  extraordinary  purposes,  they  were  authorized  to 
purchase  it.  Besides  the  line  of  deviation  actually  cuts  the  respondent's  house 
in  two,  and  in  such  circumstances  the  appellants  had  no  right  to  take  a  part 
without  taking  the  whole,  if  the  plaintiff  required  them  to  do  so ;  and  it  is  a 
reasonable  inference  that  the  contract  to  purchase  the  whole  was  made,  because, 
wanting  what  was  within  the  limits  of  deviation,  the  directors  knew  that  thej 
could  not  stop  short  with  what  was  within  those  limits.  Be  that,  however,  as  it 
may,  there  was  nothing  to  show  the  resprmdent  that  his  land  was  not  wanted  for 
the  legitimate  objects  of  the  company,  and  in  such  a  case  it  cannot  be  permitted 
to  the  directors  to  allege  that  the  contract  was  invalid  as  being  beyond  their 
powers ;  for,  as  argued  at  the  bar,  it  could  be  no  answer  to  an  action  for  iron 
rails  bargained  and  sold,  that  the  contract  had  been  entered  into,  not  in  order 
to  obtain  rails  for  the  use  of  the  line,  but  in  order  to  keep  them  in  hand  for  the 
purpose  of  a  future  use,  on  a  speculation  that  iron  was  likely  to  rise  in  value. 
I  consider,  therefore,  that  this  second  objection  is  as  untenable  as  the  first." 

In  regard  to  the  second  point  adverted  to  in  the  head  notes  of  this  case.  Lord 
Campbell  made  some  comments,  which  seem  to  us  of  very  considerable  weight  as 
applicable  to  the  general  subject  involved:  "During  the  argiunent  there  was 
much  discussion  on  the  question  how  far  such  a  company  is  bound  by  contracts 
entered  into  by  the  promoters  of  the  act  of  parliament  by  which  the  company  it 
constituted.  That  question  really  does  not  properly  arise  here ;  but  I  think  it  right 
to  guard  myself  against  the  peril  of  being  supposed  to  acquiesce  in  the  doctrine 

8  *M 


34  PRELIMINARY  ASSOCIATIONS.  CH.  II. 

*  doiied.^  But  where  the  contract  is  a  mere  arrangement  to  pur- 
chase land  at  a  specified  price,  for  the  purpose  of  building  *  the 

contended  for  by  the  respondent's  counsel,  that  there  is  complete  identity  be- 
tween the  promoters  of  the  act  and  the  company,  and  that  as  soon  as  the  act  has 
received  the  royal  assent,  a  bill  in  equity  might  be  filed  against  the  company  for 
specific  performance  of  any  contracts  respecting  land  into  which  the  promoters 
had  entered.  Kthe  company  should  adopt  the  contract  and  have  the  full  benefit 
of  it,  I  think  the  company  would  be  bound  by  it  in  equity,  and  therefore  I 
approve  of  the  decision  in  Edwards  v.  Grand  Junction  Canal  Company,  1  Myl. 
&  Cr.  650 ;  1  Railw.  C.  173 ;  although  the  language  of  Lord  Cottenham  in  tliat 
case  may  require  qualification  and  must  be  taken  with  reference  to  the  facts  with 
which  he  was  dealing.  But  it  seems  to  me  that  the  extension  contended  for  of 
the  principle  on  which  that  case,  and  several  similar  cases  which  have  followed  it, 
rest,  is  quite  unreasonable,  and  would  lead  to  very  mischievous  consequences. 

*'  Here,  then,  is  a  contract  admitted  to  be  under  the  common  seal  of  the  com- 
pany. The  appellants  make  an  idle  allegation  that  the  seal  was  afiixed  without 
the  sanction  of  a  majority  of  the  members  of  the  company,  but  no  fraud  is  im- 
puted to  Mr.  Hawkes.  The  directors  have  repeatedly  recognized  the  validity 
of  the  contract,  and  in  an  action  at  law  upon  it,  under  a  plea  of  non  est  factum, 
they  coidd  have  had  no  defence,  though,  if  they  could  allege  and  prove  that 
Mr.  Hawkes  was  guilty  of  illegality  in  entering  into  it,  the  action  would  be 
barred. 

"  But  dismissing  the  charge  that  he  was  bargaining  for  the  application  of  the 
fiinds  of  the  company  to  a  line  to  be  made  without  the  authority  of  parliament, 
the  contract  is  merely  the  ordinary  contract  between  a  company  meaning  to 
apply  to  parliament  for  authority  to  extend  a  line  of  railway,  and  the  owners  of 
the  land  through  which  the  extended  line  is  meant  to  pass,  to  be  carried  into 
effect  if  the  solicited  act  of  parliament  be  obtained.  The  shareholders  of  the 
company  might  if  they  pleased  object  to  their  funds  being  applied  to  defrapng 
the  expense  of  soliciting  the  bill,  but  if  they  remain  quiet  it  may  fairly  be  in- 
ferred that  they  all  approve  of  the  extension ;  and  when  the  bill  to  authorize  the 
extension  has  received  the  royal  assent,  no  shareholder  can  any  longer  complain. 
According  to  the  manner  in  which  such  bills  are  usually  framed,  the  extended 
line  becomes  part  of  the  concern  to  be  managed  by  the  company  for  the  profit 
of  the  body  of  shareholders,  power  being  given  to  the  company  to  increase  the 
capital,  or  by  some  means  to  provide  the  money  necessary  to  complete  the  ex- 
tended line.  Since  the  case  of  Simpson  v.  Lord  Howden,  9  CI.  &  Fin.  61,  it  is 
impossible  to  contend  that  an  agreement  by  a  land-owner  to  withdraw  opposition 
to  a  bill  for  a  railway  intended  to  pass  through  his  property  is  not  a  good  and 


•  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  Rail- 
way Co.,  3  Mac.  &  G.  70;  s.  c.  20  L.  J.  Ch.  90;  8.  c.  14  Jur.  921 ;  1  Eng.  L. 
&  Eq.  122;  Hawkes  r.  Eastern  Counties  Railway  Co.,  3  De  G.  &  S.  314;  8.  c. 
20  L.  J.  243 ;  8.  c.  4  Eng.  L.  &  Eq.  91 ;  Preston  r.  Liverpool,  Manchester,  & 
Newcastle-upon-Tyne  Junction  Railway  Co.,  1  Simons  (n.  8.)  586 ;  7  Railway 
C.  1 ;  7  Eng.  L.  &  Eq.  124. 
*86,  36 


§  12.  CONTRACTS  BT  PROMOTERS  FOR  LAND.  35 

railway,  and  the  quieting  of  opposition  does  not  enter  into  the 
consideration,  the  company  are  not  bound  to  pay  over  the  *  money, 

valuable  consideration.  I  adhere  to  the  doctrine  laid  down  in  a  passage  quoted 
from  my  judgment  in  the  case  of  the  Mayor  of  Norwich  t>.  The  Norfolk  Railway 
Company,  4  Ell,  &  Bl.  397 ;  8.  c.  30  Eng.  L.  &  Eq.  120;  but  that  referred  to 
doing  something  which  was  positively  criminal  and  indictable,  the  obstruction 
of  a  navigable  river  by  building  a  bridge  across  it.  This  cannot  lawfully  be 
done  in  the  hope  that  an  act  of  parliament  may  be  obtained  to  legalize  it.  But 
where  no  offence  is  to  be  committed  against  the  public,  and  there  is  a  mere  want 
of  authority  for  a  transaction  among  private  individuals  or  commercial  com- 
panies, which  authority  can  only  be  obtained  by  act  of  parliament,  no  objection 
whatever  can  be  successfully  made  to  the  parties  entering  into  an  agreement  for 
completing  the  transaction  when  the  necessary  authority  is  so  obtained." 

In  regard  to  decreeing  specific  performance  of  contracts  of  this  character,  the 
Lord  Chancellor  makes  some  pertinent  remarks :  ' '  The  third  point  made  in  sup- 
port of  this  appeal  was,  that  even  taking  the  contract  to  have  been  a  good  and 
valid  contract,  into  which  the  company  might  lawfully  enter,  still,  the  case  was 
one  in  which  a  court  of  equity  ought  not  to  interfere,  but  ought  to  leave  the 
plaintiff  to  assert  his  legal  rights  by  action.  It  was  argued  that  the  court  has 
frequently  acted  on  this  principle  in  suits  where  a  vendor  has  been  seeking,  as 
in  this  case,  to  enforce  against  a  railway  company  the  specific  performance  of  a 
contract  for  the  purchase  of  land,  when  the  time  within  which  the  line  was  to 
be  made  had  expired.  And  reference  was  in  particular  made  to  two  cases 
decided  by  Lords  Justice  Knight  Bruce  and  myself,  when  I  held  the  office  of 
Lord  Justice.  I  allude  to  the  cases  of  Webb  v.  The  Direct  London  and  Ports- 
mouth Railway  Company,  1  De  G.  Mac.  &  G.  521 ;  s.  c.  9  Eng.  L.  &  Eq.  249, 
and  Stuart  r.  The  London  &  Northwestern  Railway  Company,  1  De  G.  Mac. 
&  G.  721 ;  8.  c.  11  Eng.  L.  &  Eq.  112. 

"  In  the  former  of  these  cases  (the  particulars  of  which  his  lordship  fully 
stated)  the  court  proceeded  on  two  grounds.  In  the  first  place,  the  terms  in 
which  the  deed  was  framed  were  such  as  to  lead  the  court  strongly  to  the  con- 
clusion that  the  whole  contract  was  meant  to  be  conditional  on  the  line  being 
formed,  and  that  if  it  should  be  (as  in  fact  it  was)  abandoned  by  its  projectors, 
then  all  the  provisions  of  the  agreement  were  to  fall  to  the  ground  ;  a  construc- 
tion, I  may  observe,  which  receives  great  support  from  the  subsequent  case  of 
Gage  V.  The  Newmarket  Railway  Company,  18  Q.  B.  457 ;  8.  c.  14  Eng.  L.  & 
Eq.  57.  But  independently  of  that  difficulty  the  case  appeared  to  be  one  in 
which  a  court  of  equity  ought  not  to  interfere  in  favor  of  the  plaintiff,  for 
that,  by  any  such  interference,  we  should  be  doing  injustice  in  the  attempt  to 
add  to  the  legal  remedy.  The  injury  which  the  plaintiff  sustained  by  the  non- 
performance of  the  contract  was  this :  though  he  was  lefl  with  the  whole  of  his 
land  untouched,  he  lost  all  claim  to  the  £4,500,  and  might,  perhaps,  have  sus- 
tained damage  consequent  on  his  having  been  for  five  years  liable  to  have  any 
portion  of  it,  not  exceeding  eight  acres,  taken  by  the  company  for  the  purpose 
of  the  railway.  That  teas  evidently  a  case  for  compensation  by  action  Jor  damages 
and  not /or  rdiefby  way  of  specific  performance.  Indeed,  I  hardly  know  how  a 
decree  for  specific  performance  could  have  been  there  enforced,  for  no  particular 

•87 


36  PRELIMINARY  ASSOCIATIONS.  CH.  H. 

unless  tliey  enter  upon  some  portion  of  the  land,  and  under  such 
circumstances  an  absolute  covenant  to  pay  the  money,  by  the 
company,  would  be  ultra  vires  and  void.* 

eight  acres  had  been  contracted  for,  and  the  company  had  no  power  to  select 
eight  acres,  except  for  the  purpose  of  making  the  railway,  the  power  to  make 
which  had  long  since  ceased.  On  these  grounds  the  court  refused  to  interfere, 
leaving  the  plaintiff  to  the  legal  remedy  on  his  covenant. 

"  I  have  thought  it  necessary  to  explain  the  grounds  on  which  the  decision  in 
these  two  cases  rested,  for  the  purpose  of  showing  that  they  are  not  at  variance 
with  the  decision  now  under  appeal.  Here  there  is  no  uncertainty  as  to  the 
subject-matter  of  the  purchase.  The  vendor  did  not  sleep  on  his  rights,  and 
wait  until  it  was  impossible  for  the  purchaser  to  make  the  line.  On  the  con- 
trary, from  the  very  day  on  which  the  contract  was  to  be  completed,  he  insisted 
on  its  performance,  having  shortly  before  that  time  quitted  possession  of  the 
property,  and  within  less  than  five  months  afterwards  he  filed  his  bill.  It  is  true 
that  the  directors,  after  the  filing  of  the  bill,  allowed  the  time  to  pass  within 
which  they  were  bound  to  complete  the  line.  But  the  plaintiff  is  not  to  blame 
for  that.  He  did  not,  either  actively  or  passively,  mislead  the  defendants,  and  it 
would  be  impossible  to  hold  that  he  is  not  entitled  to  the  relief  he  asks,  without 
going  to  the  length  of  saying  that  no  vendor  of  an  estate,  contracting  to  sell  to 
a  railway  company,  can  ever  have  a  decree  for  a  specific  performance  if  the  com- 
pany should  see  fit  afterwards  to  abandon  the  undertaking,  with  a  view  to  which 
the  contract  was  made." 

*  Gage  V.  The  Newmarket  Railway,  18  Q.  B.  457 ;  8.  c.  14  Eng.  L.  &  Eq.  57. 
In  this  case,  the  views  of  Lord  Campbell,  in  delivering  the  opinion  of  the  court, 
do  not  seem  to  be  altogether  reconcilable  with  those  expressed  by  the  Lord  Chan- 
cellor, in  Hawkes  v.  The  Eastern  Counties  Railway,  but  as  they  seem  to  us  more 
consistent  with  the  views  maintained  in  this  country,  upon  analogous  subjects,  and 
those  which  we  anticipate  may  probably  find  more  favor  in  the  English  courts 
when  the  outward  pressure  of  circumstances  shall,  by  lapse  of  time,  be  removed, 
we  here  adopt  them.  Lord  Campbell,  Ch.  J. :  "  We  are  of  opinion,  that  the  de- 
fendants are  entitled  to  our  judgment.  Taking  the  deed  as  set  out  on  oyer,  we 
think  that  there  is  no  breach  well  assigned  upon  it.  The  covenant  there  (without 
saying  any  thing  as  the  declaration  does  about  '  reasonable  time ' )  is  merely  in 
these  words :  '  That  in  the  event  of  the  bill  hereinbefore  mentioned  being  passed 
in  the  present  session  of  parliament,  the  said  company  shall,  before  they  shall  enter 
upon  any  part  of  the  lands  of  the  said  Sir  Thomas  Rokewood  Gage,  in  the  said 
county  of  Suffolk,  pay  to  the  said  Sir  T.  R.  Gage,  his  heirs  and  assigns,  the  sum 
of  £4,900  purchase-money,  for  any  portion  of  his  lands  not  exceeding  forty- 
three  acres,  which  the  said  company  may,  under  the  powers  of  their  act,  require 
and  take  for  the  purposes  of  their  undertaking ;  that  in  addition  to  purchase- 
money  as  aforesaid,  the  said  company  shall  pay  to  the  said  Sir  T.  R.  Gage,  his 
heirs  and  assigns,  before  they  shall  enter  upon  any  part  of  the  said  land,  the  sum 
of  £7,100  as  a  landlord's  compensation  for  the  damage  arising  to  his  estate  by 
the  severance  thereof,  in  respect  of  the  lands,  not  exceeding  forty-three  acres,  to 
be  taken  by  them.'  The  question  we  have  to  determine  is  whether  the  company, 
never  having  entered  upon  any  part  of  the  plaintiff's  lands,  he  is  now  entitled 


§  12.  CONTRACTS  BY   PROMOTERS   FOR  LAND.  87 

*  In  an  important  case  ^  before  the  House  of  Lords,  the  doctrine  of 
the  former  cases  is  assumed  to  have  established  the  proposition, 
*  that  the  acts  of  parliament  to  railway  companies,  empowering  them 
to  build  railways,  are  enabling  and  not  obligatory  in  their  nature. 
And  it  was  here  considered,  that  upon  a  contract  whereby  the  com- 
pany before  obtaining  their  act,  executed  a  debenture  bond  in  the 
sum  of  X  14,500  to  one  of  the  land-owners,  as  the  sum  to  be  paid 

to  sue  for  these  two  sums,  or  either  of  them.  The  £4,900  is  declared  to  be  the 
purchase-money  for  the  land  to  be  required  and  taken ;  and  the  only  time  of 
pajinent  mentioned  is  before  the  company  enter  on  the  land.  Therefore,  if  no 
land  is  required  or  taken,  and  the  company  never  enter  on  any  part  of  the  land, 
there  seems  great  difficulty  in  saying  that  there  has  been  a  breach  of  covenant 
in  not  paying  the  money.  So  the  £7,100  is  declared  to  be  a  compensation  for 
the  severance  of  the  land  taken  from  the  rest  of  the  plaintiff's  land,  and  the  same 
time  of  pa\-ment  is  defined.  But  there  has  been  no  severance  to  be  compen- 
sated, and  the  time  for  payment  has  not  arrived.  The  deed  does  not  bargain  for 
a  sum  of  money  to  be  paid  absolutely  by  the  company  to  the  plaintiff,  as  a  con- 
sideration for  his  withdrawing  his  opposition  to  the  bill,  but  provides  a  peculiar 
mode  of  estimating  the  value  of  the  land  to  be  taken,  and  of  the  compensation  to 
be  made  for  severance-damage,  instead  of  the  modes  pointed  out  by  the  general 
acts  upon  this  subject.  We  therefore  do  not  think  that  the  company  can  be 
considered  as  having  absolutely  covenanted  to  pay  £12,000  to  the  plaintiff,  in  a 
reasonable  time  after  the  passing  of  the  act  If  this  deed  could  bear  such  a  con- 
struction, we  should  have  thought  it  so  far  ultra  vires  and  void.  Here  the  rail- 
way company  are  the  covenanters ;  and  if  the  present  action  lies,  the  capital 
paid  up  by  the  shareholders  must  be  answerable  for  the  damages  to  be  recovered. 
We  consider  that  this  would  be  a  misappropriation  of  the  funds  of  the  company, 
which  the  directors  could  not  lawfully  make.  All  the  cases  relied  upon  by  the 
plaintiff's  counsel  are  clearly  distinguished  from  the  present,  except  Webb  v. 
The  London  &  Portsmouth  Railway  Company,  before  Vice-Chancellor  Thtmer. 
Notwithstanding  our  high  respect  for  that  learned  judge,  we  cannot  concur  in  the 
reasons  for  his  decision ;  and  although  it  has  not  been  expressly  overturned,  its 
authority  was  greatly  shaken  when  it  came  before  the  Lords  Justices  of  Appeal. 
We  do  not  feel  it  necessary  to  give  any  opinion  upon  the  case  of  Bland  v.  Crow- 
ley, in  which  the  learned  judges  of  the  Court  of  Exchequer  were  divided,  as  the 
deed  there  discussed  varies  materially  from  the  present.  Nor  would  it  be  proper 
to  give  any  opinion  upon  Stuart  v.  The  London  &  Northwestern  Railway  Com- 
pany, as  we  learn  that  when  it  came  before  the  Lords  Justices  of  Appeal,  it  was 
sent  by  them  to  be  decided  in  a  court  of  law.  We  are  happy  to  think  that  the 
question  in  this  case  being  on  the  record,  it  may  be  brought  before  a  court  of 
error."  See  §  16,  and  notes.  The  same  principle  was  further  enforced  and 
illustrated,  in  a  recent  case,  in  the  House  of  Lords.  Edinburgh,  Perth,  &  Dun- 
dee Railway  p.  Philip,  2  M'Queen  H.  of  Lds.  614;  s.  c.  28  Law  Times,  846,  89 
Eng.  L.  &  Eq.  41. 

»  The  Scottish  Northeastern  Railway  r.  Stewart,  6  Jur.  N.  8.  607 ;  8  Macq. 
,H.  Lds.  Cas.  882. 

•38,89 


38 


PRELIMINARY  ASSOCIATIONS. 


CH.  n. 


him  before  breaking  ground,  taking  a  counter  obligation  to  repay 
the  sum  if  the  bill  should  not  pass ;  and,  having  obtained  their  act 
but  never  exercised  its  powers  or  built  their  road,  it  must  be  held, 
that  upon  the  fair  construction  of  the  whole  transaction  with  refer- 
ence to  the  more  recent  view  taken  by  the  courts  of  the  law  appli- 
cable to  such  contracts,  the  money  stipulated  was  not  due  the 
land-owner  except  upon  the  company  breaking  ground  for  the  pur- 
pose of  constructing  their  works. 


SECTION   XII. 


Practice  of  Courts  of  Equity  in  decreeing  Specific  Performance. 


1.  Mtttucd  arrangements  protected  in  Chan- 

cery. 

2.  But  decisions  are  conflicting.     In  cases 


qfdoubtjid  right  plaintiff  is  remitted  to 
common-law  remedies, 
n.  2.    Statement  of  cases. 


§  13.  1.  The  English  courts  of  chancery  have  in  many  instances, 
enforced  specific  performance  of  contracts,  between  difierent  lines 
of  railway,  fixing  mutual  arrangements,  in  *  reference  to  their 
future  operations,  even  where  acts  of  parliament  were  necessary  to 
carry  such  contracts  into  full  efiect,  and  sometimes  after  a  change 
of  circumstances,  materially  affecting  the  interest  of  the  parties 
concerned.  And  those  courts  have  often  enforced  an  injunction, 
in  cases  of  this  kind,  where  interests  of  great  magnitude  were  con- 
cerned, even  where  the  right  of  the  plaintiflT  was  questionable,  upon 
the  ground  that  things  were  required  to  be  kept  in  a  safe  train,  until 
the  rights  of  the  respective  parties  could  be  definitely  determined.^ 

2.  But  the  practice  of  the  English  courts  of  equity,  in  regard  to 
this  subject,  resting  chiefly  in  discretion  as  might  be  expected,  is 
very  variable,  and  the  cases  not  easily  reconcilable.  In  many 
cases,  where  the  right  of  the  plaintiff  is  doubtful,  the  injunction  to 
stay  the  progress  of  the  road  till  the  contract  was  performed  has 
been  denied,  and  the  party  remitted  to  his  rights  in  a  court 
of  law.^    The  latter  course  would  seem  to  be  most  consistent  *  with 

'  Great  Western  Railway  Co.  v.  The  Birmingham  &  Oxford  Junction  Rail- 
way Co.  and  others,  2  Phillips,  Ch.  Cases,  697.  The  remarks  of  Cottenham, 
Lord  Chancellor,  in  this  case,  are  very  pointed,  in  defence  of  the  practice, 
in  the  English  courts  of  eqtiity,  of  enforcing  contracts,  made  by  the  projectors  of 
railways,  against  the  company  itself,  after  it  comes  into  operation. 

*  Webb  V.  Direct  London  &  Portsmouth  Railway  Co.,  1  De  G.  M.  &  G.  521 ; 
8.  C.  9  Eng.  L.  &  Eq.  249.  When  the  same  case  was  before  the  Vice-Chan- 
•  40,  41 


§  13.  SPECIFIC   PERFORMANCE  IN  COURTS   OF  EQUITY.  39 

the  ordinary  proceedings  of  courts  of  equity,  in  applications  for 
specific  performance. 

cellor,  Turner,  he  seemed  to  regard  the  plaintiff  as  entitled  to  specific  perform- 
ance, but  the  Lords  Justices,  upon  appeal,  entertained  no  doubt  that  the  party 
should  be  remitted  to  his  rights  in  a  court  of  law.  See  Preston  c.  Liverpool, 
Manchester,  &  Newcastle  Junction  Railway  Co.,  1  Simons  (n.  s.)  586 ;  s.  c.  7 
Eng.  L.  &  Eq.  124.  The  Court  of  Appeal,  in  a  similar  case.  Lord  J.  Stuart  r. 
London  and  Northwestern  Railway  Co.,  1  De  G.  M.  &  G.  721 ;  8.  c.  7  Railw. 
C.  44;  11  Eng.  L.  &  Eq.  112,  put  their  refusal  to  decree  specific  performance, 
upon  the  grounds,  that  the  party,  if  he  had  any  right,  could  obtain  complete 
redress  at  law,  and  that,  after  the  abandonment  of  the  project,  or  material  de- 
partures from  it,  it  would  be  impossible  for  the  railway  to  hold  the  land  to  any 
beneficial  purpose,  after  paying  the  money,  and  that  therefore  the  principle  of 
mutuality  wholly  failed.  The  Lord  Chancellor,  St.  Leonards,  seemed  also  to  be 
of  opinion,  that  the  only  ground  upon  which  the  decision,  in  Webb  v.  London  & 
Portsmouth  Railway  Company,  1  De  G.  M.  &  G.  621 ;  8.  c.  9  Eng.  L.  & 
Eq.  249,  could  be  vindicated,  was  the  want  of  mutuality.  But  it  would  seem, 
that  this  whole  class  of  cases,  where  contracts  have  been  made  to  take  land, 
either  at  a  given  price  per  acre  or  for  a  gross  sum,  or  to  pay  a  sum  of  money 
for  the  damage  to  an  estate  in  gross,  by  reason  of  a  railway  coming  in  a  certain 
line,  either  across  or  near  the  premises  of  the  obligee,  should  be  regarded  as  con- 
ditional, unless  the  contrary  appeared,  in  express  terms,  or  by  the  strongest 
implication.  Any  other  view  of  these  parliamentary  contracts,  as  they  are  de- 
nominated, gives  them  very  much  the  air  of  wagering  policies  or  legislative 
gambling!  See  also  upon  this  subject,  Potts  r.  The  Thames  Haven  Dock  & 
Railw.  Company,  15  Jur.  1004 ;  8.  c.  7  Eng.  L.  &  Eq.  262,  where  it  is  held, 
that,  in  pursuing  a  claim  for  specific  performance  of  an  agreement  of  a  railway 
company  to  purchase  land  of  trustees,  the  persons  beneficially  interested  in 
the  land  were  not  necessary  parties  to  the  proceeding.  A  query  is  suggested, 
whether  a  specific  performance  could  be  decreed,  there  having  been  no  valuation 
of  the  land,  and  in  this  case  there  had  been  great  delay  on  the  part  of  the  com- 
pany, owing  to  their  pecuniary  embarrassment,  but  aft^r  considerable  discussion, 
it  was  agreed  to  give  the  company  further  time,  and  the  claim  was  ordered  to 
stand  over.  It  has  been  held,  where  a  private  company  leased  land,  with  a 
clause  of  re-entry,  and  were  subsequently  incorporated,  with  an  express  provision 
in  their  charter  that  all  contracts  made  before  the  act  of  incorporation  sliall  be 
binding  upon  the  fcorporation,  and  they  have  the  same  rights  as  if  these  contracts 
were  entered  into  with  them,  they  might  maintain  ejectment  for  the  land. 
London  Dock  Co.  r.  KnebeU,  2  M.  &  Rob.  66. 

The  case  of  Strasburg  Railway  Co.  v.  Echtemacbt,  21  Penn.  St.  220,  was  this :  — 
Several  persons  signed  a  paper  agreeing  that  if  the  Strasburg  Railway  should 
be  incorporated  with  certain  privileges,  they  would  subscribe  the  number  of 
shares  set  opposite  their  names  respectively,  and  the  charter  was  obtained  with 
the  privileges  in  question,  but  the  defendant,  who  was  one  of  the  subscribers 
above  mentioned,  refused  to  take  the  stock,  and  it  was  held,  that  the  promise  was 
without  consideration,  and  therefore  not  a  contract,  but  a  mere  naked  expression 


40  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

•SECTION   XIII. 
Spedjic  Performance  in  Courts  of  Equity. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made. 

§  14.  But  the  courts  of  equity  have  been  mainly  influenced  by 
what  they  esteem  the  policy  of  enforcing  these  parliamentary  *  con- 

of  intention,  which  equity  will  not  enforce  by  decree  for  specific  performance, 
and  that  if  it  was  a  binding  agreement  it  should  be  enforced  at  law. 

Leave  has  sometimes  been  given  by  courts  of  equity  to  oppose  a  bill  in  parlia- 
ment, unless  certain  compromises  between  the  projectors  and  landholders  on  the 
proposed  line  should  be  effected.  Davis  v.  Combermere,  14  Sim.  402 ;  8.  c. 
3  Railw.  C.  506 ;  Monypenny  v.  Monypenny,  4  Railw.  C.  226. 

It  is  said,  in  a  late  English  work  upon  the  subject,  Hodges  on  Railways,  164, 
that  it  is  well  settled,  that  agreements  made  with  railway  companies  by  land- 
holders to  sell  their  lands,  and  to  withdraw  or  withhold  opposition  to  a  bill  in 
parliament,  are  not  illegal.  See  also  Capper  v.  The  Earl  of  Lindsey,  3  House 
of  Lords  Cases,  293 ;  8.  c.  14  Eng.  L.  &  Eq.  9.  This  case  was  first  argued 
in  the  Court  of  Exchequer,  and  subsequently  in  the  Exchequer  Chamber,  on 
error,  and  finally  in  the  House  of  Lords  in  the  year  1851.  The  case  is  not 
found  in  any  of  the  English  treatises  on  railways,  except  Hodges,  and  as  it  was 
long  discussed  at  the  bar,  and  thoroughly  examined  by  almost  all  the  judges  in 
the  House  of  Lords,  it  ought  perhaps  to  be  regarded  as  the  final  determination 
of  the  English  courts  upon  the  subject.  The  question  of  legality  seems  to  have 
been  taken  for  granted  here.  This  case  was  A.,  a  landholder,  through  whose 
estate  a  part  of  the  projected  railway  was  to  pass,  became  a  party  to  a  deed  with 
the  projectors  of  the  railway,  by  which  he  covenanted  to  withdraw  his  opposition 
to  their  biU  and  to  oppose  a  rival  bill ;  and  they  covenanted  to  pay  him  a  certain 
sum  of  money  in  case  their  bill  should  pass  within  six  months  from  the  date  of 
the  deed.  It  was  then  provided  that,  if  the  bill  of  these  projectors  did  not  pass 
within  six  months  from  the  date  of  the  payment,  either  party  might  put  an  end 
to  the  agreement  by  notice.  The  deed  then  contained  a  covenant  on  the  part 
of  the  projectors,  by  which  they  agreed,  if  the  two  companies  should  be  amal- 
gamated, to  pay  a  certain  sum  within  three  months  after  such  amalgamation. 
The  deed  was  dated  16th  March,  1846.  The  two  companies  were  amalgamated 
in  June,  1846 ;  but  no  bill  ever  passed  at  the  instance  of  these  projectors  alone. 
In  November,  1846,  the  projectors  gave  notice  to  put  an  end  to  the  agreement. 
The  action  was  based  upon  that  clause  in  the  agreement  by  which  the  projectors 
were  to  pay  a  sum  of  money  in  case  of  the  amalgamation  of  the  companies.  The 
defendants  pleaded  that  their  bill  had  never  passed  into  a  law ;  that  at  the  end 
of  six  months  they  had  given  notice  to  put  an  end  to  the  agreement,  and  that 
they  had  never  taken  the  plaintiff's  land.  The  Court  of  Exchequer  held  the  plea 
to  be  a  good  answer  to  the  action.  This  judgment  was  reversed  in  the  Exchequer 
•42,43 


§  14.  SPECIFIC   PERFORMANCE  IN  COURTS  OP  EQUITY.  41 

tracts,  for  the  arrangement  of  conflicting  interests,  in  regard  to 
such  projected  railways.     And  thej  have  declined  to  interfere  by 

Chamber,  and  the  latter  judgment  affirmed  in  the  House  of  Lords.  In  the  House 
of  Lords  the  question  was  submitted  to  all  the  common-law  judges,  who  gave  a 
unanimous  opinion,  by  Parke,  B.,  in  favor  of  the  plaintiff,  and  this  opinion  was 
adopted  by  the  House  without  dissent.  The  learned  judge  said,  in  conclusion, 
*'  The  right  to  payment  does  not  depend  upon  the  fact  of  making  a  part  of 
the  railway  by  the  amalgamated  company  on  the  plaintiff^s  estate,  or  taking,  or 
using,  or  doing  any  injurj'  to  the  plaintifiTs  land ;  the  right  to  it  depends  simply 
upon  the  efflux  of  three  months'  time  after  the  Amalgamation  Act."  Although 
this  construction  seems  at  first  blush  somewhat  narrow,  and  one  side  of  the 
main  purpose  of  the  agreement,  it  must,  we  think,  be  regarded  as  the  only  just 
and  legitimate  view.  The  contract  did  not  so  much  contempUte  the  taking  of 
any  portion  of  plaintifiPs  land,  or  any  estimable  definite  injury  to  his  estate,  as 
the  privilege  of  doing  so,  if  that  should  become  desirable,  and  the  quieting  of 
the  defendants'  lawful  opposition  to,  or  control  of,  the  enterprise,  in  consequence 
of  his  pecuniar)'  interest  in  the  same.  It  was  the  purchase,  at  a  fixed  price,  of 
the  privilege  or  option  to  deal  with  plaintiff's  estate,  as  one  favoring  the  project, 
and  ultimately  to  place  the  projected  line  in  such  position,  with  reference  to  the 
estate,  as  they  should  find  most  advantageous  to  themselves.  And  as  they  had 
enjoyed  what  they  bargained  for,  it  was  clearly  due  that  they  should  pay  the 
stipulated  price  of  their  purchase. 

There  is  a  recent  case  in  New  Hampshire,  Low  v.  Conn.  &  Pass.  Railroad  Co., 
45  N.  H.  370,  where  the  question  of  the  right  of  those  who  have  rendered 
extensive  services  in  promoting  the  subscription  to  the  stock  of  a  corporation,  to 
recover  compensation  of  the  corporation  for  time  and  money  so  expended,  is 
extensively  and  ably  discussed. 

It  is  here  said  that  where,  after  the  charter  and  before  the  organization  of  a 
corporation,  services  are  rendered  which  are  necessary  to  complete  that  organ- 
ization, and  afler  it  has  been  perfected  the  corporation  elect  to  take  the  benefit 
of  such  services,  knowing  that  they  were  rendered  with  the  understanding  that 
compensation  would  be  made,  it  will  be  held  liable  therefor,  upon  the  ground 
that  it  must  take  the  benefit  with  the  burden. 

It  was  here  considered  that  the  grantees  in  a  charter  are  the  sole  members  of 
the  corporation  until  associates  are  admitted  by  them,  and  they  may  act  as  the 
corporation  without  admitting  any  others.  Hughes  v.  Parker,  19  N.  H.  181. 
But  to  effect  any  binding  contract  or  corporate  act,  the  concurrence  of  at  least  a 
majority  of  such  grantees  is  requisite ;  and  that  the  sole  power  of  determining  by 
what  measures  and  by  what  agency  the  organization  shall  be  effected  rests  with 
the  grantees,  a  majority  of  whose  votes  will  govern. 

This  case  seems  to  have  gone  mainly  upon  the  authority  of  Hall  v.  Yt.  &  Mass. 
Railroad  Co.,  28  Vt.  401.  But  we  question  whether  the  principle  of  com- 
pensation is  not  in  fact  carried  in  both  cases  to  the  utmost  verge  of  good  policy. 
In  the  case  of  Low  v.  The  Railway  Co.,  the  plaintiff  was  allowed  to  recover  the 
value  of  a  horse  which  he  delivered  to  one  of  the  efficient  promoters  of  the  enter- 
prise upon  a  sort  of  wager,  that  if  the  road  ever  reached  the  town  of  Bradford  in 
Vermont,  the  place  of  the  plaintiff's  residence,  this  promoter  should  have  his, 


42  PRELIMINARY   ASSOCIATIONS.  CH.  H. 

injunction,  where  no  such  contract  had  been  definitely  made,^  *  not- 
withstanding such  representations  on  the  part  of  the  promoters,  as 
misled  the  agents  of  the  land-owner.  Thus  showing,  very  explic- 
itly, that  the  main  ground  upon  which  the  English  courts  of  equity 
have  proceeded,  in  decreeing  specific  performance,  and  enforcing  it 
by  injunction,  has  been  to  compel  good^  faith  on  tlie  part  of  such 
incorporations,  in  carrying  into  eflfect  any  contracts  on  their  part. 
For  it  is  said  by  the  English  courts,  having  obtained  advantages  in 
consequence  of  the  contracts  and  assurances  of  the  agents  employed 
in  the  projects,  it  would  tend  to  destroy  all  confidence  in  any  such 
arrangement,  if  they  were  not  enforced,  which  would  be  of  evil 
example  and  tend  to  great  practical  inconvenience.  But  where  the 
parties  stand  upon  their  legal  rights,  as  secured  in  the  act  of  incor- 
poration, a  court  of  equity  will  not  interfere.^    In  a  late  case  these 

the  plaintifTs,  best  horse.  And,  of  course,  as  a  gentleman  of  honor,  when  the 
road  reached  the  point  indicated,  he  felt  bound  to  deliver  the  horse.  It  is  true 
that  the  court  sent  the  case  back  to  have  the  jury  find  the  fact,  that  this  promoter 
performed  efficient  service  for  the  company  in  effecting  its  organization,  and  that 
the  company  adopted  such  service  by  taking  the  benefits  of  it,  and  that  the  horse 
was  no  more  than  a  reasonable  compensation  for  such  service. 

Notwithstanding  our  own  participation  in  the  decision  of  Hall  v.  Vt,  &  Mass. 
Railway,  we  woidd  now  feel  that  the  rule  there  adopted  in  regard  to  charging 
service,  rendered  in  effecting  the  organization  of  the  company,  to  the  corpora- 
tion, is  one  of  too  great  laxity,  and  too  susceptible  of  abuse,  to  afford  a  safe  guide 
in  these  lax  times,  when  every  possible  avenue  to  corruption  is  sure  to  find  some 
one  desperate  enough  to  enter.  There  should  at  least  be  proof  that  the  service 
was  performed  under  an  expectation  of  compensation,  and  that  the  corporation 
expressly  promised  payment.  And  in  the  Earl  of  Lindsay  r.  The  Great  North- 
em  Railway  Co.,  10  Hare,  665 ;  s.  c.  19  Eng.  L.  &  Eq.  87,  before  V.  C.  Wood, 
it  is  said,  "  that  the  agreement  is  legal  in  itself,  is  now  settled,  by  authority."  In 
this  case,  which  was  a  contract  that  the  trains  should  stop  at  a  particular  station, 
the  court  decreed  a  specific  performance,  giving  the  companies  time  to  make  the 
necessar}-  arrangements,  before  making  the  decree  absolute. 

But  one  railway  company  cannot  bind  itself  to  defray  the  expense  of  an  ap- 
plication to  parliament  by  another  company,  for  the  establishment  of  another 
line  of  railway,  expected  incidentally  to  benefit  the  first  company.  Such  con- 
tract is  beyond  the  ordinary  scope  of  the  powers  of  a  railway  company,  and 
consequently  illegal,  and  such  a  covenant  cannot  be  enforced  in  a  court  of  law, 
however  beneficial  to  the  covenanter  the  objects  of  the  covenant,  if  carried  out, 
might  be.  East  Anglian  Railway  Company  r.  The  Eastern  Counties  Railway 
Company,  11  C.  B.  775 ;  8.  c.  7  Eng.  L.  &  Eq.  505 ;  McGregor  r.  The  Deal  & 
Dover  Railway  Company,  18  Q.  B.  618 ;  8.  c.  16  Id.  180 :  Post,  §§  56,  187. 

'  Hargreaves  r.  Lancaster  &  Preston  J.  Railway  Company,  1  Railw.  Cas.  416. 

*  Aldred  r.  North  Midland  Railway  Company,  1  Railw.  Cas.  404;  Provost 
♦44 


§  15.  EQUITY   CONTROLS   PROCEEDINGS  IN  PARLIAMENT.  43 

provisional  contracts  seem  to  be  regarded  as  conditional,  depend- 
ing, ordinarily,  for  their  obligation,  as  against  the  corporation,  upon 
their  having  done  any  thing  under  their  charter  which  the  agree- 
ment enabled  them  to  do,  so  as  thereby  to  have  received  the  benefits 
of  it.8 

•SE'CTION   XIV. 

Courts  of  Equity  will  restrain  a  Party  from  Opposition  or  Peti- 
tion in  Parliament. 

1.  Such  easa  not  common  in  practice.  \   2.   Such  catet  not  readiltf  recognized. 

§  15.  1.  It  is  held  in  the  English  courts  of  equity  altogether  com- 
petent and  within  their  appropriate  jurisdiction,  to  restrain  a  party 
from  opposing  a  bill  in  parliament  by  petition,  if  a  proper  case  is 
made  out,  and  by  parity  of  reason  from  pursuing  a  petition  in  favor 
of  an  act  of  parliament.*    But  such  cases  are  not  common  in  prao- 

and  Fellows  of  Eton  College  r.  Great  Western  Railway  Company,  1  Railw.  Cas. 
200. 

'  Gooday  r.  Colchester  &  Stour  Valley  Railway  Company,  17  Beav,  132  ;  8.  c. 
16  Eng.  L.  &  Eq.  596.  In  this  case  the  Master  of  the  Rolls  said :  "  Since  the  act 
was  obtained,  nothing  has  been  done  nor  any  step  taken  to  construct  the  railway. 
There  is  no  distinct  evidence  indeed  that  the  railway  has  been  abandoned,  but  no 
money  has  been  paid,  no  land  taken,  nor  any  movement  made  towards  carrying  on 
the  scheme,  and  the  compulsory  powers  of  the  act  have  never  ceased.  Under  these 
circumstances,  I  cannot  say  that  the  company  has  adopted  the  agreement,  or  is 
bound  by  its  terms ;  and  therefore  I  do  not  think  I  can  compel  them  to  admit 
the  contract  in  an  action  at  law."  Very  recently,  in  Williams  r.  The  St.  George's 
Harbor  Company,  30  Law  Times,  84 ;  8.  c.  2  De  G.  &  J.  647,  it  was  held  by  the 
Master  of  the  Rolls,  that  an  agreement  entered  into  by  the  promoters  of  a  com- 
pany before  incorporation,  is  not  binding  on  the  company  when  incorporated, 
unless  they  subsequently  do  some  act  amounting  to  an  adoption  of  it.  This 
seems  now  to  be  the  settled  doctrine  in  the  English  courts.     Ante,  §  3. 

'  The  Stockton  &  Hartlepool  Railway  Company  r.  The  Leeds  &  Thirsk  and 
The  Clarence  Railway  Companies,  2  Phillips,  666 ;  8.  c,  6  Railw.  Cas.  691.  In 
this  case  the  injunction  was  granted  by  the  Vicc-Chancellor  of  England,  ShadweU, 
but  the  order  discharged,  by  the  Lord  Chancellor,  Cottenham,  on  the  ground  that 
no  proper  case  for  the  interference  of  a  court  of  equity  was  made  out,  but  distinctly 
affirming  the  jurisdiction.  The  Lord  Chancellor  says :  "  This  court,  therefore,  if  it 
see  a  proper  case,  connected  with  private  property  or  interest,  has  just  the  same 
jurisdiction  to  restrain  a  party  from  petitioning  against  a  bill  in  parliament  as 
if  he  were  bringing  an  action  at  law,  or  asserting  any  other  right  connected  with 
the  enjoyment  of  the  property  or  interest  which  he  claims."  Heathcote  v.  The 
North  Staffordshire  Railway  Company,  6  Railw.  Cas.  358.     In  this  last  case  it 

♦46 


44 


PRELIMINARY  ASSOCIATIONS. 


CH.  II. 


tice,  and  dependent  upon  peculiar  circumstances,  as  where  pro- 
ceedings in  parliament  are  in  violation  of  express  covenants,  or  for 
some  other  reason,  in  bad  faith,  and  where  damages  at  law,  are  no 
adequate  compensation.  These  cases  are  therefore  determined 
much  upon  the  same  grounds  as  other  cases  of  specific  performance, 
and  come  properly  under  consideration  in  this  connection. 

2.  In  one  case,  where  the  company  had  quieted  opposition  by 
inserting  a  clause  in  the  act  to  enable  them  to  buy  land,  which 
they  had  agreed  to  purchase,  as  the  price  of  quieting  the  opposi- 
tion, and  afterwards  applied  for  an  act  enabling  them  to  abandon 
this  branch,  and  repealing  this  clause,  it  was  held,  that,  although 
the  court  had  power  to  restrain  an  application  to  parliament,  it 
was  difficult  to  conceive  a  case  in  which  it  would  do  so,  and  that 
it  would  not  do  so  in  this  case.^ 


•SECTION   XV. 


Contracts  to  wUJidraw  opposition  to  Railway  Projects,  and  to  keep 
this  secret,  against  sound  policy  and  would  seem  to  he  illegal. 


1.  Principle  of  foregoing  decisions  obscure. 

2.  Not  adopted  in  this  country  unless  terms 

inserted  in  charter. 

3.  Recent  change  of  views  in  English  courts. 

8-5.  Statement  of  late  case  in  which  prin- 
ciple of  Edwards  v.  Grand  Junction 
Railway  is  doubted. 


6.   Act  of  incorporation  should  not  be  varied] 
by  oral  testimony. 

7.  Contracts  to  quiet  opposition  not  favored 

in  this  country. 
n.  6.  Recent  English  and  American  decisions. 

8.  Regarded  as  ultra  vires. 

9.  May  be  enforced,  if  legislature  not  exposed 

to  be  misled. 


§  16.  1.  The  principle  of  the  foregoing  decisions,  upon  the  sub- 
ject of  specific  performance  of  contracts  with  the  promoters  of  rail- 
way projects  being  enforced  in  courts  of  equity  against  the  company, 
is,  to  say  the  least  of  it,  somewhat  obscure.  Regarded  as  illegal 
contracts,  it  does  not  seem  very  apparent  how  they  can  with  much 
show  of  consistency,  be  specifically  enforced  in  a  court  of  equity. 
Ordinarily,  such  contracts  are  not  the  subject  of  an  action  for  their 
enforcement,  in  any  court.  That  there  may  be  extreme  cases, 
where  one  has  gained  an  unconscionable  advantage  by  enticing  a 

was  held  by  the  Lord  Chancellor,  that  a  contract  to  make  a  railway  is  not  one  of 
which  a  court  of  equity  will  compel  the  specific  performance,  but  will  leave  the 
parties  to  their  legal  rights. 

»  Steele  v.  North  Met.  Railw.  Law  Rep.,  2  Eq.  237. 
♦46 


§  16.  CONTRACTS  AGAINST  SOUND   POLICY.  46 

less-experienced  person  into  participation  in  an  illegal  transaction, 
where  a  court  of  equity  will  compel  the  successful  party  to  relinquish 
the  fruits  of  the  fraud,  may  be  true.  But  the  general  proposition 
laid  down,  by  Lord  Eldon^  upon  this  subject,  in  the  Vauxhall  Bridge 
case,^  does  not  seem  to  gain  much  support  from  the  case  cited  by 
him.^ 

2.  It  seems  to  us  impossible  to  justify  such  contracts,  beyond 
the  mere  sale  of  a  definite  pecuniary  interest.  And  even  that, 
*  it  would  seem,  should  be  secured  by  the  insertion  of  definite  pro- 
visions in  the  charter.  We  cannot  find  that  any  attempt  has  been 
made  in  this  country,  to'  enforce  against  a  corporation  a  contract 
made  with  the  promoters  to  quiet  opposition  in  the  legislature. 
That  it  is  often  charged,  that  such  and  similar  contracts  are  made 
by  the  promoters  of  railway  projects  with  the  friends  of  rival  projects, 
and  otlier  opposers,  and  with  the  members  of  the  legislature  even, 
and  large  sums  of  money  disbursed  in  fulfilment  of  such  contracts 
which  are  expected  to  be  refunded  by  the  company,  and  which  are 
so  refunded  sometimes,  is  undeniable.  But  we  apprehend,  there  is 
in  this  country  but  one  opinion  in  regard  to  the  legality  and  decency 
of  such  contracts,  and  that  those  who  expect  to  profit  by  them  have 
far  too  much  sagacity  to  trust  their  redress  to  the  judicial  tribunals 
of  the  country.  But  that  turnpike  and  bridge  companies,  and  ex- 
isting railways,  whose  profits  are  to  be  seriously  affected  by  the 
establishment  of  new  railways  and  land-owners,  whose  property  is 
to  be  affected  by  such  railways,  may  properly  stipulate  for  reason- 
able indemnity,  as  the  price  of  withdrawing  opposition,  there  can 
be,  we  apprehend,  no  question.  But  it  seems  to  us,  that  the  only 
proper  mode  of  securing  this  indemnity  is,  by  the  insertion  of  spe- 
cial clauses  in  the  charter  of  the  new  company.  There  can  be  no 
question  in  regard  to  the  duty  of  courts  of  equity,  in  a  proper  case 

Ante,  §  7,  Jacob,  64. 
•  Neville  v.  Wilkinson,  1  Brown,  C.  C.  643.  The  principle  of  this  case,  if  we 
comprehend  it,  is  a  familiar  one.  It  is  that  one  who  has  represented  to  a  creditor 
of  his  debtor,  or  to  the  father  of  the  intended  wife  of  his  debtor,  that  his  debt 
did  not  exceed  a  specified  sum,  shall  not  be  allowed  to  enforce  against  such 
debtor  any  larger  sum,  the  marriage  having  taken  place  in  confidence  of  such 
representation.  This  representation  was  made,  indeed,  by  connivance,  between 
the  husband  and  his  creditor,  to  deceive  his  wife's  father.  But  so  far  as  the 
creditor  is  concerned,  the  decision  seems  to  rest  upon  the  familiar  principle  of 
an  estoppel  in  pais.  Shirley  r.  Ferrers,  cited  in  St.  John  v.  St.  John,  11 
Vesey,  636. 

•47 


46  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

for  their  interference,  to  enforce  an   indemnity  secured  by  the 
act.^ 

3.  We  infer  from  the  late  decision  of  the  House  of  Lords  upon 
this  subject,  that  the  views  of  the  courts,  in  that  country,  are 
already  undergoing  some  change  in  relation  to  it.  In  the  case 
of  Caledonian  and  Dumbartonshire  Junction  Railway  v.  Helens- 
burgh Harbor  Trustees,*  the  facts  were  that  the  magistrates  of 
Helensburgh  agreed  with  the  provisional  committee  of  a  projected 
railway  company  to  allow  the  company  certain  privileges  of  taking 
land  in  the  town,  and  laying  rails  for  a  side  track  to  the  harbor  of 
H.,  the  company  to  pay  all  the  expenses  of  enlarging  the  harbor, 
and  of  obtaining  an  act  of  parliament  for  that  purpose.  The 
Harbor  Act  was  obtained,  and  also  the  Railway  *  Act.  In  the  latter 
there  was  no  provision  authorizing,  or  referring  to,  the  previous 
agreement,  and  the  railway  company  refused  to  perform  their 
part,  and  did  not  claim  performance  of  the  other  part. 

4.  On  a  bill  for  specific  performance,  brought  by  the  harbor 
trustees,  held,  reversing  the  decision  of  the  court  of  session,  that 
specific  performance  could  not  be  decreed,  because  the  railway 
company  had  no  power  to  make  a  harbor,  which  would  be  entirely 
beside  the  object  of  their  incorporation. 

5.  It  is  said  by  the  Lord  Chancellor,  and  by  Lord  Brougham^ 
"  It  seems  tliat  Edwards  v.  The  Grand  Junction  Railway,  1  Railw. 
C.  173,  and  Lord  Petre  v.  The  Eastern  Counties  Railway,  Id.  462, 
and  other  similar  cases,  which  have  followed  them,  are  unsup- 
ported in  principle,  but  these  cases  are  distinguished  from  the 
present,  by  the  nature  of  the  contracts  sought  to  be  enforced, 
which  were  matters  within  the  scope  of  the  respective  charters. 
The  custom  sometimes  adopted  by  committees  in  parliament  of  omit- 
ting special  clauses  from  acts  of  incorporation,  on  the  agreement 
of  the  promoters  that  the  objects  proposed  to  be  attained  by  these 
clauses  should  be  carried  out,  appears  to  be  illegal,  and  improper." 

6.  It  seems  very  obvious,  that,  if  these  clauses  can  be  foisted 
into  the  act  of  incorporation,  by  oral  testimony,  at  the  will  of 
interested  parties,  it  is  exposing  the  operation  of  the  act  to  all  the 
incouveniencies  and  inconsistencies  which  might  be  expected  to 

^  Gray  v.  The  Liverpool  &  Bury  Railway,  9  Beav.  391 ;  s.  c.  4  Railw.  C. 
236 ;  Ante,  §  11. 

*  Before  the  House  of  Lords  in  June,  1866 ;  8.  c.  2  Macq.  H.  of  L.  391 ; 
8.  C.  39  Eng.  L.  &  Eq.  28. 
•       •48 


§  16.  CONTRACTS   AGAINST  SOUND   POLICY.  47 

follow  from  subjecting  written  contracts  to  the  same  mode  of 
exposition.  Sound  views  and  true  policy  seem  to  us  to  require 
a  strict  adherence  to  the  act  of  the  legislature,  as  in  other  cases. 

7.  And  it  is  very  questionable,  whether,  in  this  country,  the 
contract  to  sell  a  definite  pecuniary  interest,  —  as  land  which  is 
required  for  the  construction  of  the  road,  or  turnpike  and  canal 
property,  the  value  of  which  is  to  be  seriously  affected  by  the 
railway  going  into  operation, —  at  a  price  agreed,  made  with  the 
promoters  of  the  railway,  but  not  inserted  in  the  act,  and  which 
is  not  unreasonable,  can  be  enforced  against  the  company.  It  is 
certain,  we  think,  that  a  contract  going  altogether  beyond  this, 
and  stipulating  large  sums,  beyond  the  supposed  value  of  any 
*  pecuniary  interest  to  be  secured,  and  for  the  obvious  purpose  of 
quieting  opposition,  or  securing  favor  and  support,  could  not  be 
enforced  here,  even  against  the  contracting  parties,  and  much 
less  against  the  company,  or  at  all  events  tliat  it  ought  not  to  be.^ 

*  And  in  the  more  recent  cases  upon  this  subject  very  little  countenance  is 
given  to  the  doctrine  of  the  earlier  English  cases,  which  held  the  contracts  of  the 
promoters  of  railways  binding  upon  the  company,  upon  the  slightest  grounds  of 
adoption,  and  often  by  the  most  forced  constructions.  In  the  case  of  Preston  r. 
Liverpool,  Manchester  &  N.  Railway,  5  H.  of  L.  605 ;  s.  c.  35  Eng.  L.  &  Eq. 
92,  although  the  case  is  professedly  decided  upon  the  construction  of  the  par- 
ticular contract,  yet  it  is  not  difficult  to  perceive,  in  the  very  sensible  reasons 
assigned  for  the  construction  adopted,  a  manifest  disposition  to  abandon  the 
former  ground  assumed  by  the  courts  upon  this  subject.  The  point  is  thus  stated 
in  the  note  to  this  latter  case :  "  H.  &  Y.,  projectors  of  a  railway  company,  en- 
tered into  a  treaty  with  the  plaintiff  (a  land-owner) ,  whereby  the  latter  agreed 
not  to  oppose  their  bill  in  parliament,  and  an  agreement  was  executed  by  them, 
as  the  executive  directors  of  the  railway  company,  by  which  the  company,  upon 
its  incorporation,  was  to  pay  to  the  plaintiff  £1,000  for  land  of  which  he  was  the 
freeholder,  and  which  was  required  for  the  purpose  of  making  the  railway,  and 
£4,000  for  residential  damage."  There  were  other  stipulations  in  regard  to  tun- 
nelling a  portion  of  plaintiff^s  property,  and  erecting  a  station  upon  another 
portion.  The  company  was  incorporated,  but  not  being  able  to  raise  sufficient 
funds,  no  attempt  was  made  to  construct  the  railway,  and  the  money  subscribed 
was  returned  to  the  shareholders.  "  Held  that  the  contract  was  conditional, 
upon  the  making  of  the  railway,  and  therefore  that  the  plaintiff  was  not  entitled 
to  moneys  payable  thereunder.  And  quaere,  whether  a  company  can  be  con- 
sidered as  the  successors  or  assignees  of  the  projectors,  so  as  to  come  into 
existence  subject  to  their  contracts."  See  Ed.  P.  &  Dundee  Railw.  r.  Philip, 
2  M'Qu.  H.  of  L.  614 ;  8.  c.  39  Eng.  L.  &  Eq.  41. 

There  are  numerous  English  cases  upon  this  point  since  the  date  of  the  second 
edition  of  this  work.  In  Aldham  r.  Brown,  2  El.  &  El.  398,  in  Exchequer 
Chamber,  the  extent  of  the  responsibility  of  a  subscriber  to  the  preliminary  as- 

•49 


48  PRELIMINARY   ASSOCIATIONS.  CH.  II. 

8.  In  an  English  case,''  decided  in  the  Exchequer  Chamber, 
reversing  the  decision  of  the  Court  of  Exchequer,  it  was  held, 
that  a  contract  by  the  company  to  pay  £2,000  to  a  land  owner, 

sociation  is  extensively  discussed  upon  an  extended  and  somewhat  refined  state 
of  pleadings.  The  result  may  be  briefly  stated  as  amounting  to  nothing  more 
than  that  such  subscriber  is  responsible  for  his  ratable  proportion  of  the  provi- 
sional expenses,  whether  the  scheme  is  finally  abandoned  or  not. 

Where  a  deposit  of  eight  per  cent  upon  the  estimated  cost  of  a  railway  is  paid 
into  court,  in  compliance  with  the  parliamentary  orders  upon  filing  petitions  for 
certain  railways,  the  proportion  of  such  deposit  will  be  paid  out  of  court  to  the 
party  duly  representing  the  petitioners,  upon  any  of  the  railway  projects  being 
abandoned.  Aberystwith  Railw.,  in  re  7  Jur.  N.  S.  610.  But  upon  the  question 
being  brought  to  the  attention  of  the  Lords  Justices,  id.  564,  it  was  doubted 
whether  the  statute  allowed  the  money  to  be  repaid  merely  upon  the  withdrawal 
*  of  the  petition,  and  no  order  was  made.  But  upon  principle  it  would  seem 
there  could  be  no  difference  between  the  cases  named  specifically  in  the  statute 
for  repayment  of  the  money,  that  of  withdrawal  of  the  petition,  and  such 
as  denial  of  the  petition  or  refusal  to  allow  the  party  to  proceed.  See  Dart- 
mouth &  Torbay  Railw.  Co.,  in  re  9  Weekly  Rep.  609  V.  C.  K.  It  is  no  ob- 
jection that  the  requisite  parliamentary  deposit  is  made  from  borrowed  funds. 
Scott  V.  Oakely,  10  Jur.  N.  S.  431,  648.  And  a  court  of  equity  will  enforce 
any  agreement  made  with  the  lender  to  compel  the  repayment  of  such  deposit, 
ib.  But  an  agreement  by  an  existing  railway  to  contribute  towards  the  deposit 
required  to  promote  the  grant  of  other  lines,  is  held  ultra  vires.  So  also  is  an 
agreement  by  an  existing  railway  to  take  shares  in  the  projected  company,  or  to 
establish  traffic  regulations  with  reference  to  future  extensions.  But  such  an 
agreement  will  not  be  ultra  vires  where  its  validity  is  expressly  made  dependent 
upon  the  sanction  of  parliament.  Maunsell  v.  M.  Great  Western  (Ireland) 
Railw.  Co.,  1  H.  &  M.  130 ;  s.  c.  9  Jur.  N.  S.  660.  See  Scottish  N.  E,  Railw. 
».  Stewart,  3  Macq.  H.  L.  Cas.  382. 

But  where  the  company  stipulate  to  do  acts  uitra  vires,  there  is  no  implication 
that  this  stipulation  shall  be  held  conditional  upon  the  company  having  or  being 
able  to  obtain  legislative  authority  to  do  them.  And  if  the  acts  so  stipulated  to 
be  done  are  component  parts  of  an  entire  agreement  embracing  other  matters 
within  the  powers  of  the  company,  an  injunction  will  be  granted  against  carry- 
ing any  portion  of  the  agreement  into  eflfect.  Hattersley  v.  Shelburne  (Earl), 
7  Law  T.  N.  S.  650. 

Where  six  different  lines  of  railway,  forming  one  general  scheme,  were  pro- 
moted by  the  same  persons,  but  subsequently  four  of  them  abandoned,  and  an 
act  obtained  authorizing  the  construction  of  the  other  two,  by  which  it  was  pro- 
vided that  the  expenses,  costs,  and  charges  of  obtaining  and  passing  the  act,  and 
incidental  and  preparatory  thereto,  should  be  paid  by  the  incorporated  com- 
pany ;  it  was  held  the  costs  and  expenses  connected  with  the  abandoned  lines 
were  properly  chargeable  on  the  company.  Tilleard,  in  re,  32  Beav.  476  ;  s.  c. 
9  Jur.  N.  S.  1217. 

^  Taylor  v.  Chester  &  Midhurst  Railw.  Law  Rep.,  2  Exch.  356.     Willes  and 
Blackburn,  JJ.,  dissenting. 
•60 


§  16.  CONTRACTS   AGAINST  SOUND   POLICY.  49 

who  opposed  the  company  in  obtaining  parliamentary  powers  for 
extending  their  line,  for  the  injury  he  had  or  might  sustain,  in 
respect  of  the.  preservation  of  the  game  on  his  estate,  by  reason  of 
the  proposed  extension,  was  ultra  vires  and  did  not  bind  the  com- 
pany, the  covenant  being  absolute  and  not  depending  on  the 
building  of  the  railway,  and  the  funds  of  the  company,  being  both 
by  the  original  and  the  new  act  appropriated  to  specific  purposes, 
which  did  not  include  the  consideration  of  this  contract. 

9.  There  is  au  American  case,^  where  it  was  held,  that  an 
indemnity  secured  by  a  railway  company  to  an  individual,  to  quiet 
opposition  before  the  legislature,  for  tlie  mere  purpose  of  protect- 
ing a  private  interest,  and  the  party  is  thereby  induced  to  forego 
his  opposition,  that  the  indemnity  will  be  enforced,  unless  the  case 
presented  an  instance,  where  the  legislature  was  thereby  exposed 
to  be  misled,  and  to  do  wliat  it  otherwise  would  not  have  done. 

»  Low  V.  Conn.  &  Pass.  RaUw.,  46  N.  H.  284. 


50 


RAILWAYS   AS   CORPORATIONS. 


CH.  III. 


*CHAPTER    III. 


RAILWAYS   AS   CORPORATIONS. 


SECTION    I. 


Origin  and  Different  Classes  of  Corporations. 


1.  The  existence  of  corporations  dates  very 

early. 

2.  The  different  kinds  of  corporations.    Sde 

and  aggregate. 

3.  This    work    treats  chiefly  of  aggregate 

joint-stock  coj-porations. 

4.  Corporations  are  either  ecclesiastical  or 

lay. 

5.  So  they  are  divided  into  eleemosynary  and 

civil  corporations. 


6.  Corporations  are  public  or  private. 

7.  Private  corporations,  where  stock  is  jyri- 

vate  property. 

8.  Public  corporations,  where  stock  is  owned 

and  the  management  retained  by  the 
state. 

9.  It  does  not  affect  the  private  character 

of  a  corporation  that  the  state  or  the 
United  States  own  a  portion  of  the 
stock. 


§  17.  1.  The  idea  of  corporate  action,  i.  e.  by  means  of  mere 
legal  entities,  or  creations  of  the  law,  seems  to  have  existed  from 
a  very  early  day  in  the  history  of  civilization.  They  seem  to  have 
been  allowed  by  the  laws  of  Solon,  and  by  those  of  the  Twelve 
Tables  ;  and  may  very  probably  have  existed  at  a  still  earlier 
period.! 

2.  There  have  existed  various  kinds  of  corporations,  distin- 
guished sometimes  by  the  form  of  the  association  or  the  nature  of 
the  organization,  and  sometimes  by  the  character  of  the  work  to 
which  the  corporate  body  was  devoted.  Thus  corporations,  in  the 
English  law,  are  either  sole  or  aggregate.  By  the  former  is  under- 
stood corporations  existing  in  a  single  individual,  as  the  rector 
of  a  church,  or  the  judge  of  a  particular  court,  as  the  judge  of 
probate  in  whose  name  securities  are  taken  and  to  be  prosecuted, 
or  any  other  official  name,  as  the  treasurer  of  a  town,  county,  <fec., 
in  all  which  cases  the  single  individual,  *  maintaining  for  the  time 
the  particular  official  relation,  constitutes  the  qitasi  corporation. 
Aggregate  corporations  are  where  the  body  consists  of  more  than 

'  1  Kent,  Coram .  624.  The  8th  Table,  allowed  societies  or  private  companies  to 
make  their  own  by-laws,  not  being  inconsistent  with  the  public  law.     See  also  2 
Kent,  Coram.  268,  note ;  Dig.  Rora.  Civ.  Law,  47,  22,  4. 
•  61,  62 


§  17.         ORIGIN  AND   DIFFERENT  CLASSES   OF  CORPORATIONS.  51 

one  member,  whether  such  members  are  shareholders,  as  in  the 
case  of  a  mere  business  corporation,  or  are  composed  of  different 
subdivisions  of  the  entire  corporation ;  as  tiie  mayor,  aldermen, 
and  common  council  of  a  city  or  other  municipality .^ 

3.  The  corporations  with  which  we  are  chiefly  concerned,  and 
which  will  be  mainly  considered  in  the  following  work,  are  aggre- 
gate business  corporations,  with  a  joint-stock  capital,  such  as 
banks,  railways,  manufacturing  and  other  similar  organizations. 

4.  But,  as  almost  all  kinds  of  corporations  have  in  some  sense 
analogous  powers  and  functions,  it  will  not  be  practicable  to  dis- 
cuss the  law  applicable  to  one  class  without  at  the  same  time,  to 
some  extent,  considering  the  law  applicable  to  all  other  classes  of 
corporations.  It  may  be  proper  therefore  to  mention  here,  that 
aggregate  corporations  may  be  ecclesiastical  or  lay,  i.  e.  their 
functions  may  have  reference  exclusively  to  religious  matters,  as  a 
parish  or  church,  whereby  they  are  appropriately  designated,  as 
ecclesiastical  or  religious  bodies  ;  or  they  may  have  reference  only 
to  secular  matters,  whereby  they  are  more  appropriately  denomi- 
nated lay  corporations.  The  distinction  is,  however,  sometimes  not 
easily  determiijed,  since  the  business  and  functions  of  a  corpora- 
tion may  approach  so  nearly  the  one  or  the  other  as  not  inappro- 
priately to  be  classed  among  either.  Thus  *  the  English  Universities 
of  Oxford  and  Cambridge  are  now  regarded  as  merely  lay  or  civil 
corporations,  although  at  one  time  they  were,  with  propriety, 
classed  among  ecclesiastical  corporations.^ 

»  Co.  Litt.  8  6,  250  a ;  2  Kent,  Comm.  273,  274.  We  have  token  no  time  to 
discuss  the  nature  or  importonde  of  sole  corporations,  since  very  few  exist  in  the 
American  stotes,  and  where  any  such  do  exist,  it  is  so  enacted  by  express  stotute, 
in  order  to  secure  perpetual  succession  and  transmission  of  rights  and  duties, 
without  encumbering  the  succession  and  transmission  with  those  formalities, 
which  would  always  prove  laborious  and  sometimes  difficult;  and  by  reason 
thereof,  there  would  constantly  arise  embarrassing  questions,  which,  by  declaring 
the  office  a  perpetual  corporation,  is  wisely  saved. 

In  many  of  the  cases  already  alluded  to,  and  others  which  might  be  named, 
as  to  those  individuals  who  sustoin  the  official  character  of  sole  corporations,  it 
is  not  deemed  important  that  the  stotute  conferring  such  functions  should  de- 
clare them  corporations,  or  to  possess  corporate  rights  and  duties.  All  that  is 
required  is,  that  it  should  be  provided  that  contracts  made  to  them  may  be  sued 
in  the  name  of  their  official  successors,  or  that  in  any  other  fonn  such  individ- 
ual should  be  declared  by  his  official  name  to  have  the  power  to  contract  for  the 
benefit  of  himself  and  his  successors,  perpetually. 

'  AngeU  &  Ames,  §  40;  1  Bl.  Comm.  471. 

•68 


52  RAILWAYS   AS   CORPORATIONS.  CH.  III. 

5.  Corporations,  too,  are  divided  into  eleemosynary,  or  such  as 
disburse  only  charity  and  subsist  for  that  purpose  only,  —  such  as 
schools,  colleges,  and  hospitals,  —  and  those  which  are  of  a  busi- 
ness or  pecuniary  character,  called  civil  or  political  bodies,  intrusted 
with  certain  rights  or  duties,  and  required  to  perform  certain 
functions,  more  or  less  connected  with  the  polity  of  the  state  or 
nation,  —  such  as  towns,  counties,  school  districts,  or  railways, 
banks,  and  manufacturing,  or  merely  business  corporations. 

6.  Corporations  are  either  public  or  private.  Public  corpora- 
tions embrace  all  the  municipal  subdivisions  of  the  state ;  such  as 
counties,  towns,  and  cities,  and  school  districts,  and  otlier  similar 
organizations.  Private  corporations  include  all  aggregate,  joint- 
stock,  incorporated  companies,  whose  capital  stock  is  owned  by 
private  persons.  But  such  joint-stock  corporations  as  possess  no 
shares  not  owned  by  the  state  or  nation  are  also  regarded  as  public 
corporations,  the  same  as  the  municipalities  of  the  state.  The  law  in 
regard  to  railways  was  thus  stated  in  the  former  edition  of  this  work. 

7.  Railways*  in  this  country,  although  common  carriers  of 
freight  and  passengers,  and  in  some  sense  regarded  as  public 
works,  are  ordinarily  private  corporations.^  By  private  corporsr 
tions  nothing  more  is  implied,  than  that  the  stock  is  owned  by 
private  persons. 

8.  If  the  stock  is  owned  exclusively  by  the  state,  the  corpora- 
tion is  a  public  one.  And  such  public  corporations  are  under  the 
control  of  the  legislature,  the  same  as  municipal  corporations,  and 
ordinarily  acquire  no  such  vested  rights  of  property  as  are  *  beyond 
the  control  of  legislative  authority.^     The  American  cases  going 

*  There  is  no  necessity  for  these  public  functions  being  confined  to  aggregate 
corporations,  as  is  the  universal  practice  in  this  country.  The  same  franchises 
and  immunities  might  be  conferred  upon  any  private  person,  at  the  election  of 
the  legislature,  as  was  done  by  the  legislature  'of  New  York  upon  Fulton  and 
Livingston,  in  regard  to  steamboat  navigation,  which  grant  was  held  valid  but  for 
the  United  States  Constitution.  And  whoever  was  the  grantee,  the  same  rights, 
duties,  and  liabilities  would  result  from  the  grant,  whether  to  a  natural  person  or 
to  a  corporation. 

»  Ante,  §  1,  pi.  6. 

•  Dartmouth  College  v.  Woodward,  4  Wheaton,  518,  568 ;  2  Kent,  Comm. 
7th  ed.  (275)  305  and  notes.  If  the  question  were  entirely  new,  it  might  be  re- 
garded as  admitting  of  some  doubt,  perhaps,  how  far  the  American  states  could 
with  propriety  undertake  such  extensive  public  works,  whose  benefit  enures 
almost  exclusively  to  private  emolument  and  advantage.  •  But  the  practice  is 
now  pretty  firmly  established.     And  there  seems  to  be  no  proper  tribunal  to  de- 

*54 


§  17.         ORIGIN   AND   DIFFERENT   CLASSES   OF   CORPORATIONS.  53 

to  confirm  this  proposition,  and  to  show  that  railways  are  private 
corporations,  are  numerous." 

tcrmine  such  questions  between  the  states  and  the  citizens.  Public  opinion  is 
the  only  practical  arbiter  in  such  cases.  And  that  is  so  much  under  the  control 
of  interested  parties,  ordinarily,  that  its  admonitions  are  not  likely  to  be  much 
dreaded  by  those  who  exercise  the  state  patronage. 

^  Donnaher  v.  State  of  Mississippi,  8  Smedes  &  M.  649,  661.  By  the  court, 
in  Trustees  of  the  Prcsbyt.  Society  of  Waterloo  r.  Auburn  &  Rochester  liailw., 
8  Hill,  570;  Dartmouth  Coll.  v.  Woodward,  1  N.  H.  Ill,  116;  Eustis  r. 
Parker,  1  N.  H.  273;  Dearborn  r.  Boston,  C.  &  Montreal  liailw.  Co.,  4 
Foster,  179,  190 ;  Ohio,  &c.  Railroad  Co.  r.  Ridge,  5  Blackf.  78 ;  Bonaparte  v. 
Camden  &  Amboy  R.,  1  Baldwin's  C.  C.  205,  222;  Bundle  r.  Delaware  &  Rari- 
tan  Canal  Co.,  1  Wallace,  Jr.  275;  R.  &  G.  R.  ».  Davis,  2  Dev.  &  Batt.  461; 
Thorpe  r.  R.  &  B.  R.  27  Vt.  140.  This  last  case  discusses  at  some  length 
the  right  of  legislative  control  over  private  corporations,  whose  functions  are 
essentially  public,  like  those  of  banks  and  railways.  The  importance  of  such 
control,  within  reasonable  limits  and  under  proper  restrictions,  both  to  the  public 
interest  and  that  of  these  corporations,  will  be  obvious  when  we  consider  the 
magnitude  of  the  interests  committed  to  such  corporations,  and  the  vast  amount 
of  capital  invested  in  such  enterprises.  We  make  no  account  of  the  banking 
capital  of  the  countrj',  most  of  which  is  occupied  in  business  more  or  less  con- 
nected with  railway  traffic.  But  the  capital  and  business  of  railways  is  almost 
incalculable. 

The  length  of  railway  in  the  United  Kingdom  of  Great  Britain  and  Ireland  in 
1857,  was  8,635  miles,  and  the  cost,  in  round  numbers,  £311,000,000  sterling, 
being  more  than  one  and  one-half  billion  of  dollars.  The  amount  invested  in 
this  country  was  about  half  as  much  in  1851,  and  the  number  of  miles  in  opera- 
tion nearly  twice  as  great,  and  almost  as  much  more  then  in  progress,  a  large 
portion  of  which  is  now  complete  (1857).  When  it  is  considered  that  these 
private  cor])oration8,  possessing  such  vast  capital,  have  engrossed  almost  the 
entire  travel  and  traffic  of  the  country,  and  that  their  powers  and  functions  come 
in  daily  contact  with  the  material  interests  of  almost  every  citizen  of  this  great 
empire,  the  importance  of  their  being  subjected  to  a  wise  and  just  supervision 
can  scarcely  be  over-estimated.  This  can  only  be  permanently  secured  by  wise 
and  prudent  legislation.  And  to  be  of  much  security  to  public  interests,  it  must 
be  by  general  acts,  as  it  is  in  many  of  the  states,  and  in  England,  since  1845.  It 
is  worthy  of  remark,  we  think,  that  while  in  the  United  States  a  large  proportion 
of  the  capital  invested  in  railways  has  proved  hitherto  wholly  unproductive,  and 
much  of  it  has  already  proved  a  hopeless  loss,  and  a  very  small  proportion  of  the 
whole  can  be  said  to  have  been  at  all  remunerative,  in  Great  Britain  the  whole 
amount  of  their  loan  and  preference  stock,  secured  virtually  by  way  of  mortgage, 
has  produced,  upon  an  average,  more  than  five  per  cent,  and  the  onlinarj'  stock 
has  produced  an  average  dividend  of  more  than  three  per  cent ;  and  in  France 
railways  have  proved  still  more  productive,  making  average  dividends  through- 
out the  empire,  for  the  year  1857,  of  nine  per  cent  upon  the  whole  investment, 
some  as  high  as  sixteen  per  cent,  and  one,  the  Lyons  and  Marseilles  line,  twenty- 
three  per  cent.     It  is  difficult  to  account  for  the  difference  in  results,  without 


54  RAILWAYS   AS   CORPORATIONS.  CH.  III. 

*  9.  It  does  not  alter  the  character  of  a  private  corporation, 
that  the  state  or  the  United  States  own  a  portion  of  the  stock.^ 

suspecting  something  wrong  somewhere.  Since  the  former  edition  of  this  work, 
considerable  advance  has  been  made  in  railway  enterprise  throughout  the  world. 
Railways  have  become  so  nearly  a  military  necessity,  in  order  to  enable  any 
nation  of  considerable  power  and  prominence  in  relative  national  position  to 
maintain  its  due  weight  and  importance,  that  very  extensive,  and  in  some  in- 
stances vast,  works  of  that  kind  have  been  accomplished,  mainly  upon  that  ground. 
The  experience  of  the  national  government  during  the  late  civil  war  has  removed 
all  question  of  the  right  of  that  government  to  charter  and  construct,  or  aid  in 
the  construction  of,  extensive  and  independent  lines  throughout  the  country  for 
military'  and  mail  purposes  alone.  It  is  stated  that  the  present  length  of  railway 
line  in  the  United  States  is  about  32,000  miles,  at  an  average  cost  of  $40,000  per 
mile,  equal  to  $1,280,000,000  in  all,  and  there  is  every  reason  to  believe  the 
Atlantic  and  Pacific  coasts  will  speedily  be  united  by  railway.  The  advance  in 
Great  Britain  and  Ireland  has  been  verj-  great  since  the  first  edition  of  this  work, 
but  probably  not  in  the  same  proportion  as  here. 

The  number  of  miles  of  railway  now  in  operation  in  France  is  about  8,000,  at 
a  cost  of  nearly  $1,300,000,000,  and  producing,  according  to  the  late  returns  of 
the  Minister  of  Public  Works,  a  net  income  or  dividend  of  nearly  nine  per  cent. 
This  is  the  same  rate  of  income  produced  by  the  French  railways  in  1858,  as 
stated  above.  The  average  income  from  railway  investment  in  Great  Britain 
and  Ireland  is  probably  not  above  half  that  sum ;  and,  in  the  United  States,  it  is 
perhaps  even  below  that.  But  our  country  is  so  immensely  extensive,  and  easy 
and  rapid  intercommunication  between  all  portions  of  the  empire  so  much  a  state 
necessity,  that  it  might  naturally  be  expected  that  for  a  long  time  considerable 
portions  of  the  line  should  remain  unproductive  in  a  pecuniary  point  of  light. 
There  have  been  great  changes  in  the  policy  of  railway  construction  and  manage- 
ment since  this  work  first  appeared,  and  mainly  in  the  right  direction.  Reckless 
and  destructive  railway  management  is  now,  we  trust,  becoming  the  rare  excep- 
tion in  this  country,  although  there  is  still,  no  doubt,  great  room  for  improve- 
ment. There  is  probably  no  other  countr}'  in  the  world  where  it  is  so  difficult 
to  bring  the  employees  and  others  connected  in  various  relations  with  railway 
management,  to  understand  and  appreciate  the  indispensable  importance  of 
bringing  every  thing  to  the  unbending  control  of  a  single  will.  This  is  not 
only  indispensable  for  success,  but  equally  for  security. 

From  authentic  sources  it  now  (1869)  appears  that  the  extent  of  railway  in  ope- 
ration in  Europe  is  not  less  than  50,000  miles.  Of  this.  Great  Britain  has  14,000 
miles,  at  a  cost  of  £500,000,000  sterling ;  France  has  nearly  10,000  miles ;  Germany, 
including  Austria,  13,000  miles ;  Spain,  3,000  miles ;  Sweden,  1,000  miles ;  Bel- 
gium, 1,000  miles ;  Switzerland  and  Holland,  each,  less  than  1,000  miles ;  and  Italy 
about  3,000  miles ;  and  Russia  nearly  3,000  miles.    There  are  also  more  than  3,000 


®  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9  Wheaton, 
904;  Miners'  Bank  r.  United  States,  1  Greene  (Iowa),  553;  Turnpike  Co.  ». 
Wallace,  8  Watts,  316.  Bardstown  &  Lou.  Railway  v.  Metcalfe,  4  Met.  (Ky.) 
199. 

*65 


§17  a. 


HOW  CORPORATIONS  ARE  CREATED. 


55 


*  But  a  turnpike  company  or  other  corporation,  managed  exclusively 
by  state  officers,  and  at  the  expense  and  for  the  benefit  of  the  state 
at  large,  is  a  public  corporation.^ 


♦SECTION    II. 


How  Corporations  are  created. 


1.  Corporations  created  btf  grant  of  the  too- 

ereignty.     This  may  be  proved,  by  im- 
plication or  by  presumption. 

2.  7^  sovereignty  may  establish  corporations 

by  general  act,  or  delegation  or  procura- 

tiOH. 

3.  Different  form*  of  defining  a  corpora- 

tion. 


The  corporate  action  of  corporations  re- 
stricted to  state  creating  than. 

It  may  (Kt  by  its  directors  and  agents  in 
other  states. 

10.  But  cannot  properly  transfer  its  entire 
business  to  another  state. 

A  college  located  at  one  place  cannot  es- 
tablish a  branch  at  another. 


§  17  a.  1.  Strictly  speaking,  corporations  can  only  be  created 
by  the  authority  of  the  sovereignty,  either  state  or  national.^ 
Hence,  the  ordinary  mode  of  creating  joint  stock  business  corpora- 
tions is  by  charter,  by  way  of  legislative  act  of  the  several  states. 
But  as,  in  some  cases,  the  record  of  such  charters  may  not  have 
been  preserved,  and  in  other  cases,  the  grant  of  corporate  powers 

miles  of  railway  in  British  India ;  about  that  extent  in  the  Canadas ;  and  there 
is  more  than  half  the  extent  of  railway  line  in  the  United  States  that  there  is  in 
all  the  rest  of  the  world ;  and  when  the  three  lines  of  Pacific  railway  shall  be 
completed,  the  extent  will  fall  little  short  of  equalling  that  of  all  the  rest  of  the 
world.  But  a  very  large  proportion  of  it  is  constructed  with  only  a  single 
track,  and  much  of  it  is  verj"  imperfectly  built,  and  has  not  proved  remunerative 
as  a  general  rule.  But  it  is  the  controlling  interest  of  the  country,  far  more 
important  than  any  other  pecuniar)'  or  political  interest,  both  in  peace  and  in 
war,  and  without  which  it  is  impossible  to  calculate  what  might  have  been  the 
result  of  the  late  civil  war. 

»  Sayre  v.  North  W.  Turnpike  Co.,  10  Leigh,  454.  But  see  Toledo  Bank  v. 
Bond,  1  Ohio  N.  S.  622,  657.  Opinion  of  Sto)r8,  J.  in  Bradley  r.  New  Y.  & 
New  H.  Railw.  21  Conn.  294,  304,  305. 

'  As  the  national  sovereignty  is  limited  to  the  subjects  and  powers  enumerated 
in  the  Constitution,  and  such  implied  powers  as  are  requisite  to  the  successful 
exercise  of  those  expressly  granted ;  and  as  no  general  power  to  create  corpora- 
tions is  expressly  given,  the  construction  of  the  court  of  last  resort  upon  these 
questions,  established  at  an  early  day,  is,  that  Congress  can  charter  only  such 
corporations  as  are  fairly  to  be  esteemed  necessary  to  the  successful  accomplish- 
ment of  its  delegated  powers  and  functions.  McCuIIough  r.  Maryland,  4 
Wheaton,  316;  Osborne  c.  Bank  of  United  States,  9  Wheaton,  733. 

♦66 


56  RAILWAYS   AS   CORPORATIONS.  CH.  III. 

may  have  been  by  way  of  implication  rather  than  express  legisla- 
tive aftt,  the  courts  have  allowed  corporations  to  prove  their  cor- 
porate character  and  capacity,  by  evidence  that  such  character  and 
capacity  is  reasonably,  or  necessarily,  *  implied  frjom  other  legislative 
action  ;  ^  or  else,  that  its  existence  is  fairly  to  be  presumed  from 
the  long  continuance  of  its  unquestioned  exercise.^ 

2.  The  legislature  may  create  corporations  by  general  acts  of 
incorporation,  as  they  are  called,  whereby  a  given  number  of  per- 
sons, by  forming  an  association  in  a  prescribed  form,  shall  become 
possessed  of  corporate  powers,  for  certain  defined  objects  and  pur- 
poses. This  is  common,  in  many  of  the  states,  as  to  ecclesiastical 
and  charitable,  or  benevolent  associations,  and  not  unfrequently 
as  to  banking,  railway,  and  other  business  corporations.  And 
although  at  one  time  questioned,  it  seems  now  conceded,  that  the 
sovereign  authority  may  grant  to  any  one  the  power  to  erect  cor- 
porations to  an  indefinite  extent,  upon  the  maxim :  Qui  facit  per 
alium  facit  per  se.  This  power  is  given  to  the  Chancellor  of  the 
University  of  Oxford,*  and  exists  in  many  other  forms. 

3.  A  corporation  is  defined  by  Lord  JSolt,  Ch.  J.,^  as  an  ens 
civile,  a  corpus  politicum,  a  persona  politica,  a  collegium,  an  univer- 
sitas,  Si  jus  habendi  et  agendi.  A  corporation  is  well  defined,  as  to 
the  general  sense  of  the  term,  by  Chief  Justice  Marshall,^  as  "  an 
artificial  being,  invisible,  intangible,  and  existing  only  in  contem- 
plation of  law."  It  is,  in  fact,  the  mere  creature  or  creation  of 
the  law.  Endowed  by  its  charter  with  the  capacity  of  performing 
certain  functions,  and  having  no  rights,  and  possessing  no  powers, 
except  those  conferred  by  the  sovereignty  by  which  it  was  created. 

4.  It  is  upon  this  ground,  that  it  has  been  declared,  upon  the 
most  unquestionable  basis,  both  of  principle  and  authority,  that  a 
"  corporation  can  have  no  legal  existence  out  of  the  boundaries  of 
the  sovereignty  by  which  it  is  created."  "^     "  It  exists  *  only  in  con- 

«  Conservators  of  the  Tone  v.  Ash,  10  B.  &  Cr.  349. 

3  Dillingham  v.  Snow,  6  Mass.  647 ;  2  Kent,  Comm.  277 ;  1  Bl.  Comm.  473. 

*  1  Bl.  Comm,  474. 

'  Anonymous,  3  Salk.  102. 

®  Dart.  College  v.  Woodward,  4  Wheat.  518.  The  same  learned  judge,  in 
another  place.  Providence  Bank  r.  Billings,  4  Pet.  U.  S.  614,  thus  comments 
upon  the  purposes  of  acts  of  incorporation :  "  The  great  object  of  an  incorpora- 
tion is,  to  bestow  the  character  and  properties  of  individuality  on  a  collective 
and  changing  body  of  men." 

''  Taney,  Ch.  J.  in  Bank  of  Augusta  t>.  Earle,  13  Pet.  U.  S.  619,  688. 
♦57,68 


§  17  a.         HOW  CORPORATIONS  ARE  CREATED.  57 

templation  of  law,  and  by  force  of  the  law ;  and  wliere  that  law 
ceases  to  operate,  and  is  no  longer  obligatory,  the  corporation  can 
have  no  existence.  It  must  dwell  in  the  place  of  its  creation,  and 
cannot  migrate  to  another  sovereignty."  And  tlie  same  thing, 
substantially,  is  repeated  in  another  case  ^  by  Mr.  Justice  Thomp- 
son. 

5.  There  seems  to  be  no  question  but  the  corporation  may  act, 
by  its  directors,  agents,  and  servants,  beyond  the  limits  of  the 
sovereignty  by  which  it  was  created,^  but  its  first  meeting,  and  all 
its  subsequent  meetings,  in  order  to  bind  absent  and  dissenting 
members,  should,  it  would  seem,  be  held  within  the  limits  and 
jurisdiction  of  the  sovereignty  creating  the  corporation.^^  But  in 
a  very  recent  case  in  New  Jersey,  Hilles  v.  Parrish,"  the  general 
rule  is  reaffirmed,  that  a  corporation  can  hold  no  *  meeting  and 
transact  no  corporate  business,  except  within  the  state  from  which 

^  Runyan  v.  Lessee  of  Costor,  14  Pet.  122,  131.  The  same  doctrine  is  main- 
tained in  other  American  cases,  Miller  r.  Ewer,  27  Me.  609 ;  Farnum  v.  Black- 
stone  Canal  Co.,  1  Sumner,  46;  Day».  Newark  India  Rubber  Co.,  1  Blatchf. 
C.  C.  628. 

•  McCall  r.  Byram  Manuf.  Co.,  6  Conn.  428.  It  was  held  in  this  case,  that 
the  directors  of  a  manufacturing  corporation  might  legally  hold  a  meeting, 
out  of  the  state,  for  the  purpose  of  making  the  appointment  of  secretarj'  of 
the  corporation,  and  the  appointment  would  not  be  rendered  invalid  thereby,  or 
by  the  fact  that  the  person  appointed  had  his  permanent  residence  without  the 
state. 

'"  Miller  p.  Ewer,  27  Me.  509.  The  law  seems  so  entirely  well  settled,  that 
corporations,  created  by  one  sovereignty,  cannot  so  transfer  their  locality  as 
legally  to  exist  and  act  in  their  organic  corporate  capacity  in  another  sover- 
eignty, that  it  appears  verj'  singular  that  such  multitudes  of  speculative  joint- 
stock  corporations,  deriving  their  charters  from  the  legislature  of  the  state,  should 
attempt  to  transfer  their  entire  local  action  to  another  sovereignty  and  jurisdic- 
tion. For  there  is  no  principle  better  settled  than  that  the  locality  of  a  business 
corporation  is  determined  by  that  of  its  principal  business  office.  And  there  are, 
unquestionably,  hundreds  of  business  corporations  chartered  by  the  legislature 
of  one  state  having  their  principal  and  only  business  offices  in  other  states.  This 
is  done  doubtless  by  holding  the  stockholders'  meetings  in  the  states  where 
the  charter  was  obtained,  and  appointing  a  board  of  directors  with  full  powers, 
and  then  carrying  forward  the  business  of  the  company  through  the  agency  of 
the  board  of  directors,  with  a  by-law  for  filling  vacancies  in  the  board  by  the 
action  of  the  directors  themselves.  But  that  seems  scarcely  less  than  an  cva.sion. 
And  although  it  may  be  held  binding  upon  the  members  of  the  company  so  long 
as  acquiesced  in  by  them,  it  might  at  any  time  be  enjoined  by  proper  proceed- 
ings in  equity. 

'«  1  McCarter,  380. 

•69 


58 


BAILWAT8  AS  CORPORATIONS. 


CH.  in. 


they  derive  their  charter.  And  it  was  here  further  held,  that  a 
resolution  of  the  directors,  at  a  meeting  held  out  of  the  state  where 
the  corporation  was  created,  for  the  purpose  of  transferring  stock 
to  some  of  their  own  number,  was  wholly  inoperative.  But  the 
court  declined  to  enjoin  those  holding  under  such  title  from  voting 
at  the  election  of  corporate  officers,  until  all  parties  could  be  heard 
upon  the  question  of  title. 

6.  But  a  college  of  learning,  established  in  a  particular  place, 
has  no  power  to  establish  a  branch,  for  one  of  its  departments  or 
faculties,  at  a  different  place.  It  was  accordingly  held,  that 
Geneva  College,  at  Geneva,  N.  Y.,  could  not  establish  a  medical 
school  in  the  city  of  New  York.^^ 


SECTION    III. 


The  Constitution  of  Corporations^  and  mode  of  Proof. 


1.  Definitions  of  the  diffeient  sense  of  the 

term  "constitution,"  as  applied  to  cor- 
porations. 

2.  How  corporations  may  be  composed  or 

constituted. 

n.  1.    The  question  illustrated  more  in  detail. 

8.  Distinction  of  legislative,  electoral,  and  ad- 
ministrative assemblies  not  essential, 

4.  Corporation  can  only  act  by  its   name. 

Subject  discussed. 

5.  Aty  demotion  from  the  name  allowed,  if 

the  substance  and  sense  be  preserved. 

6.  Courts  of  equity  will  not  restrain  corpora- 

tions from  applying  for  enlarged  powers. 

7.  Change  of  Constitution.    Effect  of  change 

of  name. 


8.  Courts  of  equity  will  enjoin  a  new  corpo- 

ration from  assuming  the  name  of  one 
of  established  credit. 

9.  Promissory  note  payable  to  A.  B.,  treas- 

urer of  a  corporation,  may  be  sued  in 
the  name  of  A.  B.  Promissory  note 
for  subscription  uxiives  condition. 

10.  Corporation  may  be  estopped  to  deny  its 

existence.    How  described. 

11.  How  the  existence  and  non-existence  of 

corporations  may  be  proved. 

12.  Party  to  written  contract,  payable  to  cor- 

poration, cannot  deny  corporate  exist- 
ence. 

13.  Proof  of  corporation  in  fact  sufficient 

in  all  cases. 


§  17  b.  1.  The  term  "  constitution,"  as  applied  to  corporations, 
is  susceptible  of  being  used  in  very  different  senses.  It  may  imply 
nothing  more  than  the  charter  or  formal  grant  of  corporate  organi- 
zation and  powers  by  the  sovereignty,  or  it  may  be  applied  to 
certain  fundamental  principles,  declared  by  the  corporators  them- 
selves, as  the  unalterable  basis  of  the  organization  of  the  body ; 
or,  if  not  wholly  unalterable,  not  to  be  altered,  except  by  the 


People  V.  Trostees  of  Greneva  College,  6  Wendell,  211. 


§  17  6.  THE   CONSTITUTION   OP   CORPORATIONS,  ETC.  59 

adoption  and  concurrence  of  certain  formalities,  not  likely  to 
occur,  except  in  regard  to  changes  of  very  obvious  necessity ;  or 
the  term  may  be  used  to  signify  the  constituent  members,  or  dif- 
ferent bodies  of  which  the  corporation  is  composed. 

*  2.  A  corporation  may  be  composed  of  natural  persons,  acting  in 
their  separate  and  individual  capacity :  or  it  may  be  composed  of 
different  bodies  of  natural  persons,  acting  in  separate  assemblies  ; 
or  it  may  be  composed  of  separate  and  distinct  corporations.^ 

3.  Some  writers  have  distinguished  the  meetings  or  assemblies 
of  aggregate  corporations  into  three  kinds,  —  legislative,  electoral, 
and  administrative.  But  this  is  a  distinction  with  reference  to 
the  different  offices,  or  duties  of  the  same  assembly,  or  meeting, 
and  is  consequently  of  no  practical  importance  to  be  maintained 
or  discussed .2 

4.  A  corporation  must  be  constituted  by  some  corporate  name, 
and  can  only  act  by  such  name.^  A  corporation  by  prescription 
may  have  several  names,  but  by  charter  it  can  have,  it  is  said, 
but  one  name  for  the  same  purpose  and  at  the  same  time.     For, 

'  Joint-stock  business  corporations  are,  for  the  most  part,  composed  of  natural 
persons.  But  as  membership  in  such  corporations  grows  out  of  the  ownership 
of  shares,  it  may  exist  in  other  corporations,  who  subscribe  for  or  purchase 
shares ;  or  the  shares  may  be  in  part  owned  by  the  sovereignty,  either  state  or 
national.  Bank  of  the  United  States  v.  The  Planters'  Bank  of  Georgia,  9 
Wheaton,  904 ;  Bank  of  South  Carolina  v.  Gibbs,  3  McCord,  377.  But  as  said 
by  Mr.  Chief  Justice  Marshall,  in  Bank  of  the  United  States  v.  The  Planters' 
Bank,  supra,  "  As  a  member  of  a  corporation,  a  government  never  exercises 
its  sovereignty.  It  acts  merely  as  a  corporator,  and  exercises  no  other  power 
in  the  management  of  the  affairs  of  the  corporation  than  are  expressly  given 
by  the  incorporating  act." 

A  familiar  instance  of  corporations,  composed  of  different  a^ssociations  of 
natural  persons,  fonning  component  parts  of  the  corporation,  will  be  found  in 
the  organization  of  municipalities,  1  Kyd.  36.  So  also  the  corporation  may  be 
composed  of  a  defined  number  of  persons  of  a  particular  class.  As  in  the  case 
of  St.  Mary's  Church  in  the  city  of  Philadelphia,  7  S.  &  R.  617. 

And  a  corporation  is  sometimes  constituted  of  several  subordinate  corporations 
combined.  As  in  the  case  of  the  Dean  and  Canons  of  the  English  Cathedrals, 
2  Burn's  Eccl.  Law,  Tit.  Monasteries,  642.  The  same  is  also  true  of  the  cor- 
porations of  the  English  Universities,  which  are  composed  of  the  subordinate 
corporations  of  the  different  Colleges  and  Halls.  1  Kyd.  36.  Some  English  towns 
and  cities  are  composed  of  several  subordinate  corporations.  And  a  freeman  of 
the  city  of  London  must  first  become  a  freeman  of  some  of  the  Trades'  incor- 
porations.    Angell  &  Ames,  §  96. 

«  1  Kyd.  399 ;  AngeU  &  Ames,  §  98. 

'  College  of  Physicians  r.  Salmon,  8  Balk.  102. 

•60 


60  RAILWAYS   AS   CORPORATIONS.  CH.  IH. 

although  it  may  have  a  new  charter  by  a  new  name,  it  thereby 
loses  the  old  name.^ 

*  5.  But  it  sometimes  becomes  an  important  and  difficult  con- 
sideration, how  far  a  departure  from  the  strict  corporate  name 
can  be  allowed  without  the  violation  or  disregard  of  established 
principles.  It  was  early  decided,^  that  in  contracts  by  or  to  cor- 
porations, it  is  sufficient  if  the  name  be  substantially  preserved. 
It  is  not  requisite  ut  idem  nomen  syllabU  be  preserved,  but  only 
in  re  et  sensu.  The  precise  words  of  the  same  are  not  indispensa- 
ble. It  is  sufficient  if  the  substance  and  the  sense  be  preserved. 
And  in  a  case  in  New  Hampshire,  it  was  held  not  essential,  in 
naming  a  corporation,  that  the  same  words  should  be  used  in  the 
same  order,  provided  the  description  was  sufficient  to  identify  the 
body.^  And  this  rule  obtains  generally,  in  all  the  cases  upon  the 
subject,  both  English  and  American.  If  the  name  used  to  de- 
scribe the  corporation  does  not  describe  any  other  person,  natural 
or  corporate,  and  is  sufficient  to  show  that  the  particular  corpora- 
tion was  intended,  it  will  be  sufficient." 

6.  The  constitutions  and  powers  of  all  corporations  must  neces- 
sarily depend  upon  the  law  of  the  state  where  the  same  was  crea- 
ted. And  in  the  English  courts  of  equity  it  is  not  the  practice 
to  interfere  to  restrain  the  majority  of  the  shareholders  from  ap- 
plying to  parliament  for  enlarged  powers.  And  the  same  rule  is 
there  adopted  as  to  foreign  corporations,  whose  shareholders  prin- 

■•  Anonymous,  3  Salk.  102.  But  some  writers  have  said  that  if  the  charter  of 
a  corporation  allow  them  to  act  by  different  names  for  the  same  purpose,  there 
is  no  good  reason  why  they  may  not.  1  Kyd.  230.  And  in  Alinot  v.  Curtis,  7 
Mass.  441,  it  is  said  a  parish  may  be  known  by  several  corporate  names.  The 
point  is  not  important,  since  few  corporations  make  any  claim  to  an  alias  dictus, 
and  where  that  is  claimed  there  will  commonly  be  no  difficulty  in  determining 
how  far  the  claim  can  be  justified  or  maintained.  There  is  no  pretence  of  the 
capacity  of  a  corporation  to  change  its  own  name  at  will.  Serious  inconvenience 
might  be  expected  to  result  from  any  such  facility  of  change  of  name  being  con- 
ceded to  corporations.  Reg.  v.  Registrar,  10  Q.  B.  839.  But  the  legislature 
may  change  the  name  of  a  corporation,  and  this  will  not  affect  its  rights,  its 
identity  being  shown.     Rosenthal  v.  Madison,  P.  R.  Co.,  10  Ind.  358. 

'  Mayor  and  Burgesses  of  Lynne  Regis.  10  Co.  Rep.  (11  Jac.  I.)  122. 

«  Newport  Mech.  Co.  v.  Starbird,  10  N.  H.  123. 

'  First  Parish  in  Sutton  r.  Cole,  3  Pick.  232 ;  Tucker  v.  Seamen's  Aid  So- 
ciety, 7  Met.  188 ;  Attorney-General  r.  Corporation  of  Rye,  7  Taimt.  546 ; 
Foster  v.  Walter,  Cro.  Eliz.  106 ;  Domestic  &  Foreign  Missionary  Society's 
Appeal,  30  Penn.  St.  425 ;  Button  v.  American  Tract  Society,  23  Vt.  336 ;  Red- 
field  on  Wills,  Pt.  1,  §  40,  and  cases  cited. 
*61 


§  17  6.  THE   CONSTITUTION   OP  CORPORATIONS.  61 

*cipally  reside  in  England,  and  where  the  principal  business  is 
transacted  in  that  country.^ 

7.  The  English  courts  of  equity  hold  a  very  strict  hand  over 
joint-stock  companies  incorporated  by  act  of  parliament,  both  in 
regard  to  the  exercise  of  their  powers  and  the  application  of  their 
funds.®  Where  the  name  of  a  corporation  is  altered  by  act  of  the 
legislature,  with  a  provision  that  it  shall  not  have  the  effect  to 
prejudice  any  right  or  remedy  in  favor  of  the  company  previously 
existing,  it  was  held  to  save  the  remedy  against  a  surety  upon  a 
bond  for  faithful  service  of  an  employee.^^ 

8.  An  application  was  made  in  a  somewhat  recent  case,^^  for  an 
injunction  against  the  defendant's  adoption  and  use  of  the  plain- 
tifTs  name,  or  one  so  similar  as  to  lead  the  public  to  suppose  they 
were  the  same  institution,  upon  the  ground  that  this  would  tend 
to  deprive  them  of  the  just  benefits  of  the  long  period  of  conducting 
their  business  upon  terms  and  in  a  mode  most  acceptable  to  the 
public.  The  application  was  based  upon  the  same  grounds  that 
have  induced  courts  of  equity  to  interfere  to  protect  parties  from 
the  fraudulent  use  of  established  trademarks,  inasmuch  as  it  tends 
to  a  double  fraud,  —  in  depriving  the  parties,  first  giving  charac- 
ter to  such  mark,  of  the  legitimate  fruits  of  their  industry ;  and 
also  in  that  it  induces  the  public  to  suppose  they  are  obtaining 
the  original  article  of  the  original  proprietor,  when  in  fact  they 
are  not.^^  The  court,  Vice-Chancellor  Stuart^  intimated  no  doubt 
of  the  propriety  of  granting  the  relief,  upon  the  ground  claimed 
in  the  bill,  but  denied  the  injunction  upon  the  ground  that  no 
such  case  was  made  out  at  the  hearing.  But  a  company  cannot 
by  user  acquire  an  exclusive  right  to  use,  in  its  title  of  incorpora- 
tion, a  term  descriptive  merely  of  the  locality  where  the  business 
is  carried  on  ;  and  the  court  will  not  restrain  the  use  of  such 
general  term  by  a  new  company,  although  it  appear  that  the  former 
company  may  have  been  prejudiced  by  the  similarity  of  name.^ 

»  Bill  V.  Sierra  Nevada  L.  W.  Co.,  1  De  G.,  F.  &  J.  177 ;  8.  c,  6  Jur.  N.  S.  184. 

•  Attorney-General  v.  Great  N.  Railw.,  1  Drew  &  Sm.  164. 

«>  Groux  &  C.  Co.  p.  Cooper,  8  C.  B.  N.  S.  800. 

"  The  London  Insurance  r.  The  London  &  Westminster  Insurance  Corpora- 
tion, 9  Jur.  N.  S.  843. 

"  2  Story  Eq.  Jur.  §  951,  rf  aeq.,  in  the  late  edition  of  1866. 

"  Colonial  Life  Ass.  Co.  r.  Home  &  CoL  Life  Am.  Co.,  83  Beav.  648 ;  8.  c, 
10  Jur.  N.  S.  967. 

♦62 


62  RAILWAYS   AS    CORPORATIONS.  CH.  III. 

9.  A  promissory  note  payable  to  a  person  by  name,  adding 
treasurer,  &c.,  naming  a  railway  corporation,  must  be  regarded 
as  payable  to  the  person  named  and  not  to  the  corporation.^*  But 
such  a  note,  given  for  a  conditional  subscription  of  stock,  must 
be  regarded  as  a  waiver  of  the  condition,  an'd,  if  executed  some 
time  after  the  date  of  the  subscription,  cannot  be  construed  as 
part  of  the  contract  of  subscription. ^^ 

10.  A  corporation,  after  having  claimed  and  exercised  corporate 
powers  for  a  considerable  time,  will  be  estopped  from  denying  its 
corporate  existence.^^  It  is  said  in  some  cases,  that  if  the  corpora- 
tion contracts  by  a  style  which  is  usual  in  creating  corporations, 
and  which  discloses  the  names  of  no  natural  persons,  that  the 
corporate  existence  will  be  implied  and  need  not  be  averred." 
But  in  general  such  a  proposition  would  not  be  regarded  as  main- 
tainable in  suits,  either  in  favor  or  against  a  corporation :  it  should 
be  described  as  such  in  the  declaration,  with  its  location  at  its 
central  place  of  doing  business. 

11.  It  has  been  held,  that  where  defendants,  sued  as  a  corpora- 
tion, rely  upon  the  fact  that  the  corporate  existence  has  ceased 
before  the  institution  of  the  suit,  it  must  be  pleaded  in  abatement 
and  not  in  bar  of  the  action.  But  in  general  the  want  of  corporate 
existence  and  power  may  be  shown  at  any  time  before  judgment, 
upon  proper  notice  and  special  plea.^^  A  party  who  has  sued  a 
corporation  and  recovered  judgment  against  them  by  a  particular 
name,  is  afterwards  estopped  from  denying  the  corporate  exist- 
ence.^^ But  this  seems  not  altogether  in  accordance  with  the 
requirement  that  estoppels  be  mutual,  unless  the  judgment  were 
between  the  same  parties.  Such  an  estoppel  would  therefore 
only  operate  as  between  the  plaintiff  in  the  former  suit  and  the 
corporation. 

12.  The  cases  are  very  numerous  where  it  has  been  held  that  a 

"  Chadsey  v.  McCreery,  27  111.  253. 

»  O'Donald  v.  E.  Ind.  &  CI.  Railw.  Co.,  14  Ind.  259. 

'»  Callender  r.  Painesville  &  H.  R.  R.  Co.,  11  Ohio  N.  S.  516  ;  The  Atlantic  & 
Ohio  R.  R.  V.  Sullivant,  5  Ohio  N.  S.  276.  See  also  Ashtabula  &  New  L.  R.  R. 
Co.  V.  Smith,  15  Ohio  N.  S.  328. 

"  Stein  V.  Ind.  «S:c.,  Association,  18  Ind.  237. 

'*  Meikel  ».  The  German  Savings  Fund  Society,  «&c.,  16  Ind.  181. 

"  Pochelu  V.  Kemper,  14  Louis.  Ann.  308. 


§  17  6.  THE  CONSTITUTION  OP  CORPORATIONS.  63 

party  who  gives  a  written  contract  to  a  corporation  by  a  particular 
name  is  estopped  to  deny  the  existence  and  name  of  such  corpora- 
tion* 

13.  And  in  all  cases  of  the  plea  of  nul  tiel  corporation,  proof  of 
a  corporation  in  fact  will  be  sufficient.* 

»  Hubbard  v.  Chappel,  14  Ind.  601. 


64 


PROCEEDINGS   UNDER  THE   CHARTER. 


CH.  IV. 


CHAPTER   lY. 


PROCEEDINGS   UNDER  THE   CHARTER. 


SECTION    I. 


Organization  of  the  Company. 


1.  Conditions  precedent  must  be  performed. 

2.  Stock  must  all  be  subscribed,  ordinarily. 
8.  Charter-location  of  road,  condition  prece- 
dent. 

4.  Colorable  subscriptions  binding  at  law. 

6.  Conditions  subsequent,  how  enforced. 

6.  Stock  distributed  according  to  charter. 

7.  Commissioners  must  all  act. 


8.  Defect  of  organization  must  be  pleaded 

specially. 

9.  Question  cannot  be  raised  collaterally. 

10.  Records  of  company,  evidence. 

11.  Membership,  how  maintained. 

12.  By  subscription  and  transfer  of  shares. 

13.  Offers  to  take  shares  not  enforced  in 

equity,  and  may  be  withdraivn. 


p>  ]§  18.  1.  To  give  the  corporation  organic  life,  the  mode  pointed 
out  in  the  charter  must  ordinarily  be  strictly  pursued.  Conditions 
precedent  must  be  fairly  complied  with.^  Thus,  where  a  given 
amount  of  capital  stock  is  required  to  be  subscribed  or  paid  in  be- 
fore the  corporation  goes  into  operation,  this  is  to  be  regarded  as 
an  indispensable  condition  precedent.^  But  if  the  charter  is  in 
the  alternative,  so  that  the  stock  shall  not  be  less  than  one  sum  or 
greater  than  another,  the  company  may  go  into  operation  with  the 
less  amount  of  stock,  and  subsequently  increase  it  to  the  larger.*^ 

>  Angell  &  Ames  on  Cor.  ch.  8,  §§  95-112 ;  2  Kent,  Comm.  293  d  seq. 

'  Post,  §  61,  and  cases  cited.  Bend  v.  Susquehanna  Bridge,  6  Har.  &  Johns. 
128 ;  Gray  v.  Portland  Bank,  3  Mass.  364 ;  Minor  v.  The  Mechanics'  Bank  of 
Alexandria,  1  Peters,  (U.  S.)  46.  Opinion  of  Story,  J.  And  where  a  corpora- 
tion is  formed,  or  attempted  to  be  formed,  under  general  statutes,  the  inchoate 
proceedings  do  not  ripen  into  a  corporation,  until  all  the  requirements  of  the 
statute,  even  the  filing  of  the  articles  in  the  office  of  the  Secretary  of  State,  are 
complied  with.  And  until  this  is  done,  the  subscription  of  any  one  to  the  articles 
is  a  mere  proposition  to  take  the  number  of  shares  specified,  of  the  capital  stock 
of  the  company  thereafter  to  be  formed,  and  not  a  binding  promise  to  pay.  The 
obligation  is  merely  inchoate  and  can  never  become  of  any  force,  unless  the  cor- 
poration goes  into  effect  in  the  mode  pointed  out  in  the  statute.  And  until  that 
time,  the  subscriber  may  revoke  the  offer,  and  if  the  articles  are  in  his  possession 
or  control,  erase  his  name.  Burt  v.  Farrar,  24  Barb.  518. 
*63 


§  18.  ORGANIZATION  OP  THE  COMPANY.  65 

•  2.  And  where  business  corporations  are  created  with  a  definite 
capital,  it  is  regarded  as  equivalent  to  an  express  condition  that 
the  whole  stock  shall  be  subscribed  before  the  company  can  go  into 
full  operation ;  and  in  the  case  of  banks,  it  must  be  paid  in  specie 
in  the  absence  of  all  provision  to  the  contrary,  before  they  can 
properly  go  into  operation.^ 

3.  In  some  cases  it  is  a  condition  of  the  charter,  or  of  the  sub- 
scriptions to  the  stock,  that  the  track  of  a  railway  shall  touch 
certain  points,  or  that  it  shall  not  approach  within  certain  distances 
of  other  lines  of  travel.  This  class  of  conditions,  so  far  as  they 
can  practically  be  denominated  conditions  precedent,  must  be 
strictly  complied  with,  before  the  company  can  properly  go  into 
operation  so  as  to  make  calls. 

4.  But  it  has  been  held,  that  colorable  subscriptions  to  stock,  in 
order  to  comply  with  the  requisites  of  the  charter,  are  not  to  be 
regarded  as  absolutely  void.  They  are  binding  upon  the  subscri- 
bers themselves.  And  they  are  binding  upon  the  other  subscribers 
unless,  upon  their  first  discovery,  they  take  steps  to  stay  the  further 
proceedings  of  the  corporation,  which  may  be  *  done  in  a  court  of 
equity.  If  there  has  been  unreasonable  delay  in  opposing  the 
action  of  the  corporators,  upon  the  faith  of  such  subscriptions,  or  if 
matters  have  progressed  so  far  before  the  discovery  of  the  true 
character  of  the  subscriptions,  by  the  parties  liable  to  be  injurious- 

'  King  V.  Elliott,  5  Sm.  &  Mar.  428 ;  post,  §  51.  But  a  requirement  in  the 
charter  of  a  railway  company,  that  $1,000  per  mile  shall  be  subscribed,  and  ten 
per  cent  paid  thereon  in  good  faith,  does  not  require  ten  per  cent  to  be  paid  by 
each  subscriber,  in  order  to  the  performance  of  the  condition.  It  is  a  suflicient 
compliance  with  such  requirement,  if  that  proportion  on  the  whole  subscription 
be  paid.  Ogdensb.,  Rome,  &  Clay.  R.  v.  Frost,  21  Barb.  541.  But  under  the 
late  English  Statutes  corporations  are  allowed  to  organize,  and  make  calls  to 
some  extent,  before  all  the  capital  is  subscribed.  Or.  P.  W.  Co.  v.  Brown,  9 
Jur.  N.  S.  578 ;  s.  c.  2  II.  &  C.  63.  But  in  America  the  rule  that  all  the  stock 
must  be  subscribed  before  the  company  can  go  into  operation  is  strenuously 
adhered  to.  Shurtz  v.  The  S.  &  T.  Railw.  Co.,  9  Mich.  269.  And  upon  gen- 
eral principles  it  seems  not  to  be  held  indispensable  in  England  that  all  the  stock 
be  subscribed,  either  to  enable  the  corporation  to  go  into  operation,  or  even  to 
borrow  money  on  mortgage.  McDougall  r.  The  Jersey  Imperial  Hotel  Co.,  2 
H.  &  M.  528 ;  8.  c.  10  Jur.  N.  S.  1043.  But,  in  America,  the  entire  capital 
stock  must  be  subscribed  and  paid  in  money,  and  it  will  not  be  sufficient  to  pay 
it  in  the  equivalent  for  money,  to  the  acceptance  of  the  shareholders  or  directors, 
unless  the  charter  or  general  laws  of  the  State  so  provide.  The  People  r.  The 
Troy  House  Co.,  44  Barb.  625. 

6  •64,66 


66  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

\j  affected  by  them,  as  to  render  it  difficult  to  restore  the  parties  to 
their  former  rights,  the  corporation  will  still  be  allowed  to  proceed, 
notwithstanding  the  fraud  upon  the  charter.* 

5.  Conditions  subsequent  in  railway  charters,  by  which  is  to  be 
understood  such  acts  as  they  are  required  to  perform  after  their 
organization,  will  ordinarily  form  the  foundation  of  an  action  at 
law,  in  favor  of  the  party  injured  ;  or  they  may  be  specifically  en- 
forced in  courts  of  equity,  in  cases  proper  for  their  interference  iu 
that  mode  ;  oj*  if  the  charter  expressly  so  provide,  proceedings  by 
way  of  scire  facias,  to  avoid  the  charter  may  be  taken.^ 

6.  Where  a  statute  declares  certain  persons  by  name,  and  such 
other  persons  as  shall  hereafter  become  stockholders,  a  corpora- 
tion, the  distribution  of  the  stock,  in  the  mode  pointed  out  in  the 
statute,  is  a  condition  precedent  to  the  existence  of  the  corpora- 
tion.^ 

*  7.  Where  the  charter  of  a  railway  company  appoints  a  certain 
number  of  commissioners,  to  receive  subscriptions  and  distribute 
the  stock,  in  such  manner  as  they  shall  deem  most  conducive  to 
the  interests  of  the  company,  making  no  provision  in  regard  to  a 
quorum,  all  must  be  present  to  consult  when  they  distribute  the 
stock,  although  a  majority  may  decide,  this  being  a  judicial  act. 

*  Walker  ».  Devereanx,  4  Paige,  229.  The  entire  ground  of  chancery  juris- 
diction in  regard  to  the  conduct  of  commissioners  or  corporations  in  making 
colorable  subscriptions  of  stock  is  here  very  fully  discussed  by  the  learned 
Chancellor.  And  the  conclusion  arrived  at  seems  the  only  practicable  one,  that 
colorable  subscriptions  or  fraudulent  distribution  of  stock  will  not  defeat  the 
legality  of  the  organization  of  the  corporation,  unless  the  thing  is  arrested 
in  limine.  Johnston  v.  S.  W.  R.  R.  Bank,  3  Strob.  Eq.  263 ;  Selma  &  Tenn.  R, 
V.  Tipton,  6  Alabama,  787 ;  Hayne  v.  Beauchamp,  6  Sm.  &  M.  515.  The  de- 
cision of  the  commissioners  is  conclusive  upon  the  company  and  shareholders,  at 
law  certainly.  Crocker  v.  Crane,  21  Wendell,  211.  And  where  the  charter,  or 
act  of  association,  names  commissioners  to  take  up  subscriptions,  they  alone  have 
jurisdiction  of  the  matter,  and  subscriptions  taken  up  by  volunteers  are  not 
binding  upon  the  subscribers  unless  adopted  by  the  commissioners.  Shurtz  v. 
The  S.  &  T.  R.  R.  Co.,  9  Mich.  269. 

*  2  Kent,  Comm.  305  and  notes. 

'  Crocker  r.  Crane,  21  Wendell,  211 ;  8.  c.  2  Am.  Railw.  C.  484.  Where 
the  statute  names  a  large  number  of  persons,  and  enacts  that  they,  or  any  three 
of  them,  may  act  as  commissioners,  either  the  whole  number  or  any  three  may 
act  at  the  election  of  the  individuals.  No  particular  form  of  words  is  required 
to  create  the  grant  of  a  corporation.  The  grant  of  power  to  perform  corporate 
acts  implies  the  grant  of  corporate  powers.  Comm.  v.  West  Chester  Railw.  Co., 
3  Grant  Cas.  200. 
♦66 


§18.  ORGANIZATION  OP  THE   COMPANY.  67 

Receiving  subscriptions  is  a  merely  ministerial  act  and  may  be  per- 
formed by  a  number  less  than  a  majority.*' 

If  the  organization  of  a  corporation  is  regular  upon  its  face,  and 
the  legislature  have  recognized  it  as  such  subsequent  to  its  having 
gone  into  operation,  it  becomes  ipso  facto  a  legal  corporation." 

8.  Questions  in  regard  to  the  organization,  ox  existence  of  the 
corporation,  can  only  be  raised  ordinarily  upon  an  express  plea, 
either  in  abatement  or  in  bar,  denying  its  existence.® 

9.  But  all  the  cases  concur  in  the  proposition,  that  the  existence 
of  the  corporation,  the  legality  of  its  charter,  and  the  question  of 
its  forfeiture,  cannot  be  inquired  into,  in  any  collateral  proceeding, 
as  in  a  suit  between  the  company  and  its  debtors,  or  others,  against 
whom  it  has  legal  claims.^ 

*  10.  The  records  of  the  corporation  are  primd  facie,  but  not  indis- 
pensable evidence,  of  its  organization  and  subsequent  proceed- 
ings.^®   But  the  authenticity  of  the  books,  as  the  records  of  the 

'  Black  River  &  Utica  Railw.  ».  Barnard,  31  Barb.  258. 

*  Boston  Type  and  Stereotype  Foundry  c.  Spooner,  5  Vt.  93,  and  cases 
cited;  Railsback  r.  Liberty  &  Abington  Tump.  Co.,  2  Carter,  656.  But  some 
cases  seem  to  require  such  proof  to  establish  the  contract.  Stoddard  v.  The 
Onondaga  Annual  Conference,  12  Barb.  573  ;  Heaston  v.  Cincinnati  &  F.  W.  R., 
16  Ind.  275.  A  party  who  executes  his  promissory  note  to  a  company  by  its 
corporate  name  is  estopped  to  deny  its  corporate  existence.  East  Pascagoula 
Hotel  Co.  V.  West,  13  La.  Ann.  541.  8.  p.  Black  River  Railw.  v.  Clarke,  25 
N.  Y.  280.  But  in  an  action  by  a  corporation  upon  a  judgment,  the  defendant 
is  estopped  to  plead  that  no  such  corporation  exists,  even  if  he  propose  to  prove 
its  dissolution  after  the  date  of  the  judgment.  He  should  plead  such  matter 
specially.  Perth  Amboy  Steamboat  Co.  v.  Parker,  2  Phila.  67.  But  see  Ander- 
son r.  Kerns  Draining  Co.,  14  Ind,  199. 

»  Duke  r.  Cahawba  Nav.  Co.,  16  Alabama,  372;  post,  §  242,  note  6.  But 
in  an  action  against  a  stockholder  for  the  debt  of  the  company  under  the  statute, 
the  existence  and  organization  of  the  company  must  be  proved ;  and  judg- 
ment against  the  company  is  not  evidence  against  the  stockholder.  Hudson  v. 
Carman,  20  Law  Rep.  216;  8.  c.  41  Me.  84;  C.  P.  &  A.  Railw.  r.  City  of 
Erie,  27  Penn.  St.  380.  See  also  Eakright  v.  L.  &  N.  I.  Railw.,  13  Ind.  404. 
The  subscription  to  the  stock  of  a  corporation  estops  the  subscriber  to  deny 
the  corporate  existence,  nor  can  the  subscriber  plead  in  defence  of  such  sub- 
scription that  other  subscribers,  by  means  of  secret  fraudulent  agreements, 
were  promised  shares  upon  terms  different  from  those  specified  in  the  agreement, 
since  such  fraudulent  arrangements  are  of  no  validity,  and  cannot  avail  the  par- 
ties on  whose  behalf  they  are  made.   Anderson  r.  N.  &  R.  Railw.,  12  Ind.  376. 

•0  Ang.  &  Am.  §  513 ;  Grays  r.  Lynchb.  &  Salem  T.  Co.,  4  Rand.  578 ;  Bun- 
combe T.  Co.  r.  McCarson,  1  Dev.  &  Bat.  306  ;  Greenl.  Ev.  §  492  ;  Rex  ».  Mar- 
tin, 2  Camp.  100;  Hudson  v.  Carman,  20  Law  Rep.  216;  s.  c.  41  Mc.  84. 

•67 


68  PROCEEDINGS  UNDER  THE  CHARTER.         OH.  IV. 

corporation,  must  be  shown  by  the  testimony  of  the  proper  officer 
entitled  to  their  custody,  or  that  of  some  other  person  cognizant  of 
the  fact." 

*  11.  Questions  sometimes  arise  as  to  what  constitutes  member- 
ship in  a  corporation.  This  has  to  be  determined,  in  most  aggre- 
gate corporations,  by  the  just  construction  and  fair  import  of  the 
charter  and  by-laws  of  the  body.  The  usage  of  the  corporation 
and  of  other  similar  bodies  will  be  of  controlling  force  in  deter- 
mining such  questions.  But  the  power  of  maintaining,  in  some 
mode,  a  supply  of  members  of  the  body,  is  incident  to  all  corpora- 
tions, as  indispensable  to  its  continued  existence.^ 

All  that  a  corporation  is  called  upon  to  prove,  to  establish  its  existence  in  a 
litigation  with  individuals  dealing  with  it,  is  its  charter  and  user  under  it.  This 
constitutes  it  a  corporation  de  facto,  and  this  is  sufficient,  in  ordinary  suits, 
between  the  corporation  and  its  debtors.  The  validity-  of  its  corporate  exist- 
ence can  only  be  tested  by  proceedings  in  behalf  of  the  people.  Mead  v. 
Keeler,  24  Barb.  20.  Between  the  company  and  strangers,  the  records  of 
the  company  will  ordinarily  be  held  conclusive  against  them  in  regard  to  such 
matters  as  it  is  their  dutj-  to  perform,  in  the  manner  detailed  in  the  records. 
Zabriskie  v.  C.  C.  &  C.  Railw.,  10  Am.  RaUw.  Times,  No.  15,  s.  c.  affirmed,  23 
How.  381.  Ht'aston  r.  Cincinnati,  &c.  Co.,  16  Ind.  275.  See  upon  the  gen- 
eral question  of  proof  and  prestunption  of  the  organization  of  corporations, 
Leonardsville  Bank  r.  Willard,  25  N.  Y.  574 ;  Belfast  and  Angelica  Plank 
Soad  Co.  V.  Chamberlain,  32  N.  Y.  651 ;  Buffalo  &  AUegany  Railw.  v.  Cary, 
26  N.  Y.  75.  Where  the  statute  imder  which  an  incorporation  is  formed  in 
another  state,  required,  that  before  the  corporation  should  commence  business 
it  should  cause  its  articles  of  association  to  be  published  in  a  prescribed  form,  it 
was  held  that  it  might  be  regarded  as  sufficiently  incorporated  for  the  bringing 
of  an  action  without  the  publication;  and  that  the  general  reputation  and 
notoriety  of  the  (act  that  such  corporation  was  doing  business  in  that  capacity, 
coupled  with  the  fact  that  the  contract  sued  upon  was  made  payable  to  them, 
was  sufficient  evidence  of  the  corporate  existence.  Holmes  r.  Gilliland,  41 
Barb.  568.  See  Unity  Ins.  Co.  v.  Cram.  43  N.  H.  636,  where  the  rule  of  con- 
stmction  is  somewhat  more  strict. 

There  seems  to  be  no  rule  of  practice  better  settled  than  that  where  the  de- 
fendant, in  a  suit  brought  by  a  corporation,  pleads  the  general  issue,  he  thereby 
concedes  the  right  of  the  plaintiff  to  sue  in  his  corporate  capacity.  Orono  r. 
Wedgeworth,  44  Me.  49.  The  members  of  a  mutual  insurance  company  can- 
not dispute  the  corporate  existence  in  a  suit  upon  the  premium  notes  in  favor  of 
a  receiver  appointed  to  wind  up  the  concerns  of  the  company.  Hyatt  r.  Whip- 
ple, 37  Barb.  595.  Misnomer  of  corporations  must  be  plead  in  abatement  or  it 
will  be  regarded  as  waived.     Keech  r.  Bait.  &  Wash.  RaUw.,  17  Md,  32. 

"  Highland  Tump.  Co.  r.  McEean,  10  Johns.  154.  See  Breedlove  v.  M. 
&c.  Railw.  Co.,  12  Ind.  114. 

"  Hicks  V.  Launceston,  1  Roll.  Ab.  618, 514 ;  s.  c.  8  East,  272  in  n.  See  also 
•68 


19. 


MODIFICATION   AND   ACCEPTANCE   OP  THE  CHARTER. 


69 


12.  But  in  jointrstock  business  coporations,  like  banks  and  rail- 
ways, and  other  similar  companies,  membership  is  originally  con- 
stituted by  subscription  to  the  shares  in  the  capital  stock ;  and  it 
is  subsequently  continued  by  the  transfer  of  such  shares,  in  con- 
formity with  the  charter  and  by-laws  of  the  company,  and  no 
election  by  or  assent  on  the  part  of  the  corporation  is  requisite, 
unless  made  so  by  the  charter  or  by-laws. 

13.  Serious  questions  often  arise  in  regard  to  the  allotment  and 
acceptance  of  shares.  Courts  of  equity  have  sometimes  declined  to 
interfere  to  carry  into  effect  specifically,  contracts  with  the  promo- 
ters to  accept  shares  in  the  company  when  it  should  be  fully  organ- 
ized.^ But  we  apprehend  the  rule  is  generally  otherwise,  as  we 
have  stated  elsewhere."  And  one  who  has  made  the  requisite 
deposit  and  also  the  formal  application  to  the  company  for  an 
allotment  of  shares,  is  still  at  liberty  to  withdraw  the  application 
at  any  time  before  it  is  accepted  or  any  allotment  made.^^ 


♦SECTION    II. 


Acceptance  of  Charter,  or  of  Modification  of  it. 


1.  New  or  altered  charter  mutt  be  formaUy 

accepted. 

2.  Sufacriptionfor  stock  tometimes  sufficient, 
8.   Inoperative  unless  done  as  required. 

4.  Assent  to  beneficial  grant  presumed. 


5.  Matter  of  presumption  and  inference. 

6.  Organization  or  acceptance  of  charter  may 

be  shown  by  parol. 

7.  Corporators  assenting  are  bound. 

8.  Charter  subject  to  recall  until  accepted. 


§19.  1.  It  is  requisite  to  the  binding  effect  of  every  legislative 
charter  (or  modification  of  such  charter)  of  a  joint-stock  company, 

2  Kent,  Comm.  294.  It  is  not  competent  for  the  defendant,  in  an  action  in  favor 
of  a  corporation,  to  plead  that  the  company  has  committed  .acts  working  a  for- 
feiture of  its  corporate  franchises.  That  can  only  be  determined  by  a  suit  on 
behalf  of  the  public,  brought  expressly  to  try  that  question.  Comm.  ».  Morris, 
1  Phil.  411;  Coil  r.  Pittsburgh  Female  College,  40  Penn  St.  439;  Dyer  ». 
Walker  &  Howard,  id.  157.  Membership  in  the  corporation  is  not  affected  by 
the  certificate  of  shares  containing  a  promise  to  pay  interest  till  a  certain  time. 
McLaughlan  v.  D.  &  M.  R.  Co.,  8  Mich.  100. 

"  OrienUl  I.  St.  Co.  v.  Briggs,  2  Johns.  &  H.  625 ;  8.  c.  4  L.  Times,  N.  S. 
678.  But  this  case  was  affirmed  by  the  Lord  Chancellor,  on  the  ground  that 
there  was  no  valid  or  complete  contract.     6  L.  Times,  N.  S.  477. 

'♦  Post,  §  34,  pi.  6. 

"  Graham  ex  parte,  7  Jur.  N.  S.  981. 

•69 


70  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

that  it  should  be  accepted  by  the  corporators.^  This  question 
more  commonly  arises,  in  regard  to  the  modification  of  a  charter, 
or  the  granting  of  a  new  charter,  the  company  in  either  case, 
whether  under  th6  old  or  the  new  charter,  going  forward  to  all 
appearance  much  the  same  as  before.  In  such  case,  it  has  usually 
been  regarded  as  important  to  show  some  definite  act  of  at  least  a 
majority  of  the  corporation  .^ 

2.  The  question  of  acceptance  becomes  of  importance  often, 
where  a  partnership,  or  some  of  its  members,  obtain  an  act  of  in- 
corporation. But  ordinarily,  in  the  first  instance,  the  assent  of  the 
stockholders,  or  corporators,  is  sufficiently  indicated  by  the  mere 
subscription  to  the  stock. 

3.  Where  a  statute  in  relation  to  a  corporation  requires  accept- 
ance, in  a  prescribed  form,  and  that  is  not  complied  with,  the  cor- 
poration can  derive  no  advantage  from  the  act.^ 

4.  It  has  been  held,  that  grants  beneficial  to  corporations  may 
be  presumed  to  have  been  accepted  by  them,  the  same  as  in  the 
case  of  natural  persons.* 

*  5.  And  in  the  majority  of  instances,  perhaps,  the  acceptance  is 
rather  to  be  inferred  from  the  course  of  conduct  of  the  company 
than  from  any  express  act.^ 

6.  It  may  always  be  proved  by  oral  testimony,  as  may  also  the 
organization  of  the  company,  ordinarily.^ 

7.  In  a  recent  case  in  Ohio,  where  an  amendment  of  the  charter 
of  a  bank  was  passed  by  the  legislature  giving  the  bank  certain 
immunities  and  privileges,  upon  the  assent  of  all  the  stockholders 
in  writing,  filed  with  the  auditor  of  state,  to  become  personally 
responsible  for  the  liability  of  the  company  in  the  manner  pre- 

i  The  King  v.  Pasmore,  3  T.  R.  200,  240 ;  Ellis  v.  MarshaU,  2  Mass.  269. 
This  wats  a  charter  to  certain  persons  by  name,  for  the  purpose  of  making  a  street, 
and  subjecting  them  to  assessment  for  the  expense,  and  it  was  held  not  to  bind 
a  person  named  in  the  act,  unless  he  assented  to  it. 

*  Wilmot,  J.,  in  Rex  v.  Vice  Ch.  of  Cambridge,  3  Bur.  1647 ;  Rex  v.  Amery, 
1  T.  R.  675 ;  Falconer  v.  Campbell,  2  McLean,  195. 

'  Green  v.  Seymour,  3  Sandf.  Ch.  285. 

*  Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  844;  by  Parker,  Ch.  J., 
and  Wilde,  J. 

*  Bank  of  U.  S.  r.  Dandridge,  12  Wheat.  64,  opinion  of  Story,  J.,  and  cases 
cited. 

«  Coffin  V.  Collins,  17  Maine,  440;  Bank  of  Manchester  v.  Allen,  11  Vt.  302; 
Angell  &  Ames.  Corp.  §§  81-87 ;  Dartmouth  College  v.  Woodward,  4  Wheat. 
688 ;  Wilmington  &  Manchester  R.  v,  Saunders,  3  Jones,  126. 
*70 


§20. 


OBDINABT   CORPORATE  POWERS. 


71 


scribed  in  the  act,  it  was  held,  that  although  all  the  stockholdere 
did  dot  subscribe  the  required  written  declaration,  yet  if  the  bank 
had  enjoyed  the  benefits  secured  by  the  amendment,  neither  those 
stockholders  who  did  subscribe  it,  or  the  bank  itself,  can  deny 
the  acceptance  of  the  amendment,  as  against  the  claims  of  third 
persons." 

8.  And  where  the  constitution  of  the  state  is  so  altered  as  to 
prohibit  the  grant  of  special  acts  of  incorporation,  it  was  held,  that 
such  an  act  granted  before  the  new  constitution  took  effect,  and 
which  had  not  been  accepted  by  the  corporators,  could  not  be 
accepted,  thereafter ;  as  the  grant  of  a  charter  to  those  who  had 
not  applied  for  it,  until  it  was  accepted,  remained  a  mere  offer,  and 
might  be  withdrawn  at  the  pleasure  of  the  grantors.^  But  where 
any  amendment  of  the  charter  of  a  corporation  was  fully  accepted 
by  the  shareholders  before  the  new  constitution  took  effect,  it  can- 
not be  effected  by  any  of  the  provisions  thereof:  and  what  shall 
amount  to  such  acceptance  is  matter  of  fact,  depending  upon  the 
construction  of  the  facts  proved.® 

•SECTION    III. 
Ordinary  powers.  —  Control  of  majority. 


1.  Ordinary  franchises  ofrailuxiys. 

2,  8.   Majority  control,  unless  restrained. 

4.  Cannot  change  organic  law. 

5.  Except  in  the  prescribed  mode. 

6.  Cannot  accept  amended  charter. 

7.  Or  dissolve  corporation. 

8.  Afay  obtain  enlarged  powers, 

9.  Courts  of  equity  will  not  restrain  the  use 

<^  their  funds  for  that  purpote. 


10.  But  will,  if  to  convert  canal  into  rail- 

way. 

11.  Right  to  interfere  lost  by  acquiescence. 

1 2.  Acquiescence  of  one  plaintiff,  fated. 
18.   Railway  a  public  trust. 

14.   Suit  maintained  by  rival  interest. 
16.    Courts  of  equity  will  not  restrain  the 
majority  from  winding  up   unless  for 
fraud,  4rc. 


§  20.  1.  The  ordinary  powers  of  a  railway  company  are  the 
same  as  those  pertaining  to  other  joint-stock  aggregate  corpora- 
tions, unless  restricted  by  the  express  provisions  of  their  charter, 

^  Owen  V.  Purdy,  12  Ohio  N.  S.  78.  And  a  legislative  permission  to  a  plank 
road  company  to  mortgage  its  corporate  property  is  an  amendment  which  may 
be  accepted  by  the  vote  of  the  majority.  And  the  same  is  true  of  all  amend- 
ments calculated  merely  to  facilitate  the  attainment  of  the  existing  objects  and 
purposes  of  the  corporation.  Joy  v.  Jackson  &  Michigan  Flank  Road  Co.,  11 
Mich.  155. 

*  State  r.  Dawson,  16  Ind.  40.  "  State  v.  Dawson,  22  Ind.  Rep.  272. 

•71 


72  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

or  by  the  general  laws  of  the  state.  These  are  perpetual  succes- 
sion, the  power  to  contract,  to  sue  and  be  sued  by  the  corporate 
name,  to  hold  land  for  the  purposes  of  the  incorporation,  to  have  a 
common  seal,  and  to  make  its  own  by-laws  or  statutes,  not  incon- 
sistent with  the  charter,  or  the  laws  of  the  state.^  And  it  may  be 
proper  to  say,  that  it  is  implied  in  the  grant  of  all  business  cor- 
porations, that  they  possess  the  power  to  acquire  and  convey  such 
property,  both  real  and  personal,  as  shall  be  found  reasonably 
necessary  and  convenient,  for  carrying  into  successful  operation 
the  purposes  of  their  incorporation.  And  when  there  is  no  limita- 
tion upon  this  power,  in  the  act  of  incorporation,  it  can  only  be 
limited  by  writ  of  mandamus  or  injunction,  out  of  chancery,  at  the 
suit  of  the  attorney-general,  or  by  some  other  proceeding  on  the 
part  of  the  people.  Until  some  such  public  interference,  the  title 
of  the  corporation  will  be  good. 

2.  The  right  of  the  majority  of  a  joint-stock  company,  whether 
a  copartnership  or  a  corporation,  to  control  the  minority,  is  a  con- 
sideration of  vital  importance,  and  will  be  more  extensively  dis- 
cussed hereafter.2 

3.  There  can  be  no  doubt  the  general  principle  of  the  right  of 
the  majority  to  control  the  minority,  in  all  the  operations  of  the 
*  company,  within  the  legitimate  range  of  its  organic  law,  is  im- 
plied in  the  very  fact  of  its  creation,  whether  expressly  conferred 
or  not.^ 

4.  And  perhaps  it  is  equally  implied  in  the  fundamental  com- 
pact, that  the  majority  have  no  power  to  change  the  organic  law  of 

'  Walford,  69 ;  1  Black.  Comm.  475,  476 ;  2  Kent,  Comm.  277 ;  where  the 
power  of  amotion  of  members  for  just  cause  is  added. 

»  Post,  §§  56,  212. 

^  Louisville,  Cincinnati,  &  Charleston  Railw.  ».  Letson,  2  Howard  ,(U.  S.), 
497 ;  8.  c.  15  Curtis,  Cond.  193.  The  very  definition  of  a  corporation,  that  it  is 
an  artificial  being  composed  of  diflferent  members,  and  existing  and  acting  as  an 
abstraction,  and  having  its  habitation  where  its  functions  are  performed,  presup- 
poses that  it  must  act  in  conformity  with  its  fundamental  law,  which  is  according 
to  the  combined  results  of  its  members,  or  the  will  of  the  majority.  But  this 
will  cannot  change  its  fundamental  law  without  changing  the  identity  of  the  arti- 
ficial being,  to  which  we  apply  the  name  of  the  corporation.  See  also  St.  Mary's 
Church,  7  S.  &  R.  517  ;  New  Orleans,  Jackson,  &c.  Railway  ».  Harris,  27  Miss. 
517 ;  Ex  parte  Rogers,  7  Cowen,  526,  which  holds,  that  if  the  charter  requires  a 
certain  number  to  be  present,  iu' order  to  the  performance  of  a  particular  act,  it 
is  requisite  that  the  number  remain  till  the  act  is  complete,  and  if»  one  depart 
before,  although  wrongfully,  it  will  defeat  the  proceedings.  • 
♦72 


§  20.  ORDINARY   CORPORATE  POWERS.  73 

the  association,  except  in  conformity  to  some  express  provision 
therein  contained. 

5.  This  principle  lies  at  the  foundation  of  all  the  political  or- 
ganizations in  this  country,  which,  in  theory  certainly,  are  not 
liable  to  be  changed  by  the  will  of  the  majority,  except  in  the  mode 
pointed  out  in  the  constitution  of  the  state  or  sovereignty.  And 
corporations  are  not  subject  to  the  ultimate  right  of  revolution, 
which  is  claimed  to  exist  in  the  state,  and  which  may  be  exercised 
by  the  law  of  force,  which  is  a  kind  of  necessity,  to  wliich  all  sub- 
mit, when  there  is  no  open  way  of  escape.  This  could  have  no 
application  to  a  commercial  company,  whose  movements  are  as 
much  under  the  control  of  the  courts  of  justice  as  those  of  a 
natural  person, 

6.  And  in  this  country  it  has  been  held,  that  the  acceptance  by 
the  majority  of  a  corporation  of  an  amendatory  act,  does  not  bind 
the  minority.*  An  amendment  to  the  charter  of  a  *  corporation,  to 
become  binding,  must  either  have  been  applied  for  in  pursuance  of 
a  vote  of  the  stockholders,  or  else  have  been  accepted  by  such  vote ; 
or  it  must  have  been  acted  under  for  such  a  length  of  time  as  to 
raise  a  reasonable  presumption  of  knowledge  in  the  shareholders 
and  subsequent  acquiescence.^ 

7.  And  a  contract  of  a  manufacturing  corporation  to  employ  the 
plaintiff,  a  stockholder,  during  the  time  for  which  the  corporation 
is  established,  that  being  indefinite,  is  not  released  by  a  majority 
of  the  company  voting  to  dissolve  the  corporation  and  wind  up  its 
concerns,  discharging  the  plaintiflf  from  his  employment,  and  trans- 
ferring the  property  to  trustees,  to  pay  the  debts  and  distribute  the 
surplus  among  the  stockholders,  and  giving  notice  to  the  executive 
department  of  the  state,  that  they  claimed  no  further  interest  in 
their  act  of  incorporation.^ 

*  New  Orleans,  &c.  Railroad  v.  Harris,  27  Miss.  517.  But  this  rule  will  be 
understood  with  some  limitations.  If  it  be  an  amendment  within  the  ordinary 
range  of  the  original  charter,  giving  increased  facilities  for  the  accomplishment 
of  the  same  objects,  it  may  be  accepted  by  the  majority,  so  as  to  bind  the  whole 
company.  But  if  it  be  a  fundamental  alteration  of  the  constitution  of  the  com- 
pany, it  must  have  either  the  express  or  implied  assent  of  all  the  corporators,  to 
make  it  binding.     Post,  pi.  8 ;  §  56,  pi.  3,  7. 

*  Illinois  River  Railway  v.  Zimmer,  20  111.  654;  Same  v.  Casey,  ib. 

*  Revere  r.  Boston  Copper  Co.,  15  Pick.  351.  This  case,  although  put  mainly 
upon  the  ground  of  plaintiff's  rights  being  independent  of  the  law  of  the  asso- 
ciation, yet  incidentally  involves  the  right  of  the  majority  of  the  corporators  to 

•73 


74  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

8.  But  the  English  cases  seem  to  suppose,  that  it  is  incident 
to  every  business  corporation  to  obtain  such  extension  and  enlarge- 
ment of  its  corporate  powers,  as  the  course  of  trade,  and  enterprise, 
and  altered  circumstances,  shall  render  necessary  or  desirable,  not 
altogether  inconsistent  with  its  original  creation.''^ 

*  9.  Hence  it  was  held  that  a  court  of  equity  will  not,  at  the  in- 
stance of  a  shareholder,  restrain  a  joint-stock  incorporated  com- 
pany, whose  acts  of  incorporation  prescribe  its  constitution  and 
objects,  from  applying,  in  its  corporate  capacity,  to  parliament,  and 
from  using  its  corporate  seal  and  resources,  to  obtain  the  sanction 
of  the  legislature,  to  the  remodelling  its  constitution,  or  to  a 
material  extension  and  alteration  of  its  objects  and  powers.'^ 

10.  In  one  case  where  the  purpose  of  the  company  was  to  apply 
to  parliament  for  leave  to  convert  part  of  its  canal  into  a  railway, 
the  vice-chancellor  granted  the  injunction  against  applying  any 
of  its  existing  funds  to  the  proposed  object.^  This  is  the  more 
common  view  of  the  subject  in  this  country,  and  to  a  great  extent 
in  England.^ 

11.  But  this  right  of  the  minority  of  the  shareholders  to  inter- 
change its  constitutional  law.  See  also  Von  Schmidt  v.  Huntington,  1  Cal.  55, 
and  Kean  v.  Johnson,  1  Stockton,  Ch.  401,  where  it  is  held,  that  where  the 
charter  is  granted  for  a  limited  time,  it  must  continue  in  operation  till  the  term 
expires,  unless,  perhaps,  in  case  of  serious  loss,  or  with  the  consent  of  all  the  cor- 
porators, and  others  having  any  legal  interest  in  the  question.  The  same  rule 
was  recently  declared  in  Louisiana.  Lodge  No.  I.  v.  Lodge  No.  I.,  16  La.  Ann. 
53.  And  it  was  here  considered,  that  a  resolution  passed  by  the  majoritj'  of  the 
members  of  a  corporation  donating  aU  the  property  of  the  company  to  a  new 
corporation  of  which  the  members  voting  are  also  members,  and  the  delivery  of 
the  same  to  such  corporation  in  pursuance  of  such  resolution,  is  void. 

''  Ware  v.  Grand  Junction  Waterworks,  2  Russ.  &  My.  470 ;  (13  Eng.  Ch. 
Rep.  126.)  Lord  Brougham  seems  here  to  suppose,  that  the  right  of  petition  to 
parliament,  for  enlargement  of  powers,  is  an  implied  incident  of  all  business  cor- 
porations, by  which  the  subscribers  are  bound,  unless  some  express  prohibition  is 
inserted  in  their  charter.  But  the  more  common  implication  in  this  country 
certainly  is,  that  the  original  shareholders  are  not  bound  by  any  such  alteration, 
unless  such  power  exists,  in  terms,  in  the  original  charter. 

*  Cunliff  ».  Manchester  &  Bolton  Canal  Co.,  2  Russ.  &  My.  480,  in  note.  But 
it  is  here  stated,  that  a  few  days  afterwards,  one  Maudsley  filed  a  bill  against  the 
same  company  and  for  a  similar  object.  The  cause  was  heard  on  its  merits,  and 
the  suit  dismissed  with  costs.  Any  act  beyond  the  scope  of  the  constitution  of 
the  company  requires  the  consent  of  all  the  members.  Burmester  v.  Norris,  6 
Exch.  796 ;  8.  c.  8  Eng.  L.  &  Eq.  487. 

9  Post,  §§  56,  181,  212. 

•74  • 


§  20.  ORDINARY  CORPORATE   POWERS.  75 

fere,  by  way  of  injunction,  to  restrain  the  majority  from  obtaining 
permission  to  alter  the  constitution  of  the  corporation,  may  un- 
doubtedly be  lost  by  acquiescence.^^  Thus  where  the  share- 
holders knew  of  the  purpose  of  the  directors  to  apply  the  funds 
of  the  company  to  the  constniction  of  part  only  of  the  road,  to  the 
abandonment  of  the  remainder,  and  remained  passive  for  eighteen 
months,  while  the  directors  were  applying  large  sums  to  the 
completion  of  this  part  only,  the  court  refused  to  interfere  by 
injunction.^® 

12.  And  if  one  of  the  shareholders,  who  has  acquiesced  in  *  the 
diversion  of  the  funds,  be  joined  in  the  suit  with  others  who  have 
not,  no  relief  can  be  afforded." 

And  there  can  be  no  doubt  of  the  soundness  of  this  principle, 
although  the  effect  of  its  application  may  be  to  produce  a  funda- 
mental alteration  of  the  constitution  of  a  corporation,  and  thus  to 
enable  them  to  do  what  they  had  no  power  before  to  do.  But  this 
is  only  applying  to  the  case  the  principle  of  implied  consent  of  all 
the  shareholders,  resulting  from  silence,  which  is  all  that  is  re- 
quisite in  any  case,  to  legalize  the  alteration  of  the  charter  of  a 
private  corporation. 

13.  It  is  said  in  a  late  case  by  an  eminent  equity  judge,  Vice- 
Chancellor  Stuart:  '^  "  Although,  generally  speaking"  "  there  can 
be  no  doubt  of  the  soundness  of  the  principle,  that  the  directors 
and  the  majority  of  the  company  may  be  restrained  from  employing 
money,  subscribed  for  one  purpose,  for  another,  however  advan- 
tageous," "  and  although  this  is  the  law  as  to  joint-stock  com- 
panies, unincorporated  and  unconnected  with  public  duties  or 
interests,  it  has  not  been  applied  to  corporate  companies  for  a  pub- 
lic undertaking,  involving  public  interests  and  public  duties  under 
the  sanction  of  parliament.    In  such  cases  the  court  of  chancery  has 

>°  Graham  r.  Birkenhead,  &c.  Railway,  2  Mac.  &  6.  146 ;  s.  c.  6  Eng.  L.  & 
Eq.  132;  Beman  c.  Rafford,  1  Sim.  N.  S.  650.  Lord  CranwoHh  says,  "This 
court  will  not  allow  any  of  the  shareholders  to  say,  that  they  are  not  interested  in 
preventing  the  law  of  their  company  from  being  violated."  Ffooks  r.  London  & 
S.  "W.  R.,  1  Sm.  &  G.  142;  8.  c.  19  Eng.  L.  &  Eq.  7.  But  one  creditor  of  a 
corporation  cannot,  by  injunction,  restrain  another  creditor  of  the  same  grade 
firom  obtaining  prior  papnent  by  virtue  of  an  execution  issued  upon  a  prior 
judgment.     Gravenstine's  Appeal,  49  Penn.  St.  310. 

»  Ffooks  r.  London  &  S.  W.  R.  1  Sm.  &  G.  142 ;  8.  c.  19  Eng.  L.  &  Eq.  7, 
opinion  of  Stuart,  V.  C.  and  cases  cited. 

'*  Ffooks  r.  London  &  S.  W.  R.  supra. 

•  *15 


76  PROCEEDINGS   UNDER  THE   CHARTER.  CH.  IV. 

permitted  the  use  of  the  corporate  seal,  and  the  moneys  of  the 
company,  to  obtain  the  sanction  of  parliament  to  purposes  ma- 
terially altering  the  interests  of  the  shareholders,  according  to  the 
contract  inter  se.  This  was  done  in  the  case  of  Stevens  v.  South 
Devon  Railway  Company,"  ^^  The  learned  judge  therefore  con- 
cludes, that,  although  the  principle  first  stated  by  him  may  apply 
to  the  case  of  public  railway  companies  in  general,  "  it  must  be 
taken  to  be  subject  to  many  qualifications,  and  requiring  much 
caution  and  consideration  "  in  its  application. 

14.  The  same  learned  judge  further  adds,  upon  the  important 
subject  of  such  proceeding  being  taken  by  one  in  the  interest  of  a 
rival  company :  "  It  has  been  suggested  that  this  suit  is  constituted 
to  serve  the  purposes  of  another  set  of  shareholders.  If  *  it  had 
been  established  that  the  real  object  of  seeking  this  injunction  had 
been  to  serve  the  interests  of  a  rival  company,  I  should  have  con- 
sidered that  a  circumstance  of  great  importance  in  determining 
the  rights  of  the  plaintiffs  to  any  relief.  No  doubt  it  has  been  held 
in  several  cases,  that  the  mere  fact  that  the  plaintiffs  are  share- 
holders in  a  rival  company  is  no  reason  for  the  court  in  a  proper 
case  refusing  its  aid,  to  prevent  the  violation  of  contracts.  But 
when  the  fact  is  established,  that,  under  the  pretence  of  serving 
the  interest  of  one  company,  the  shareholders  in  a  rival  company, 
by  purchasing  shares  for  the  purpose  of  litigation,  can  make  this 
court  the  instrument  of  defeating  or  injuring  the  company  into 
which  they  so  intrude  themselves,  in  order  to  raise  questions  and 
disputes  on  matters  as  to  which  all  the  other  members  of  the  com- 
pany may  be  agreed,  I  caimot  consider  that  in  such  a  case  it  is  the 
province  of  this  court  ordinarily  to  interfere.  In  questions  on  the 
law  of  contracts,  where  there  is  a  discretionary  jurisdiction  in  this 
court,  circumstances  afiecting  the  condition  of  the  contracting 
parties,  and  the  origin  and  situation  of  their. rights  in  relation 
to  the  subject-matter  of  the  contract,  deserve  great  consideration. 

15.  But  in  a  recent  English  case  ^*  it  was  determined  by  Vice- 
Chancellor  Wood,  that  the  court  will  not,  upon  the  application  of 
the  minority  of  the  members  of  a  corporation,  interfere  with  a 
resolution  of  the  company  voluntarily  to  wind  up  its  concerns 
unless  the  resolution  was  obtained  by  fraud,  or  by  overbearing 
conduct,  or  by  improper  influences. 

»  13  Beavan,  48 ;  s.  c.  12  Eng.  L.  &  Eq.  229 ;  s.  c.  9  Hare,  313. 
"  Se  The  Imperial  Mercantile  Credit  Association,  12  Jur.  N,  S.  736. 
*76 


^21. 


MEETINGS   OP   COMPANY. 


77 


•  SECTION    IV. 


Meetings  of  Company. 


1.  MeHings,  tpecial  and  general. 

2.  Special,  must  be  notified  as  required. 

8.    Special  and  important  matters,  named  in 

notice. 
4.  Notice  of  general  meetings  need  not  name 

business, 
6.  Adjourned  meting,  still  the  same. 


6.  Company  acts  bt/  meetings,  by  directors,  by 

agents. 

7.  Courts  presume  meetings  held  at  proper 

place. 

8.  Every  shareholder  may  vote,  but  not  by 

proxy. 


§  21.  1.  By  the  English  statutes  meetings  of  railway  compa- 
nies are  distinguished  as  "  ordinary  "  and  "  extraordinary."  That 
distinction,  in  this  country,  is  expressed  by  the  term,  general  and 
special.  Ordinary  meetings  are  the  annual  and  semi-annual  meet- 
ings of  the  company,  and  such  others  as  are  held  at  stated  times 
and  for  defined  objects,  according  to  the  provisions  of  the  charter 
and  by-laws ;  and  extraordinary  meetings  are  such  as  are  held  by 
special  call  of  the  directors,  or  other  officer,  whose  duty  it  is  made 
to  call  meetings  of  the  company,  in  certain  contingencies  usually 
defined  by  the  statutes.^ 

2.  Notice  of  special  meetings  must  be  issued  in  conformity  to 
the  charter  and  statutes  of  the  corporation,  and,  where  no  special 
provision  exists,  must  be  given  personally  to  every  member.'^ 

3.  Notice  of  special  meetings  should  ordinarily  specify  the  gen- 
eral purpose  and  object  of  the  call.  But  it  is  said  this  is  not 
indispensable,  when  it  is  for  the  transaction  of  ordinary  business, 
and  that  giving  security  for  the  debt  of  a  bank,  by  mortgage  of 
its  real  estate,  is  of  this  character.^  But  where  the  business  is 
*  unusual  and  important,  as  the  election  or  amotion  of  an  officer, 
the  making  of  by-laws,  or  other  matter  affecting  the  vital  interests 
and  fundamental  operations  of  the  corporation,  and  on  a  day  not 

»  8  «&  9  Vict.  c.  16,  §  G6. 

'  Wiggin  V.  Freewill  Baptist  Society,  8  Met.  801.  This  view  seems  to  be 
countenanced  by  Lord  Kenyan,  in  Rex  v.  Faversbam,  8  T.  R.  862 ;  Rex  v. 
May,  5  Burrow,  2681 ;  The  King  r.  Langhom,  4  Ad.  &  Ellis,  538.  See,  also, 
cases  cited  in  the  argument  of  this  case>  But  all  the  cases  agree,  that  if  the 
members  attend  even  without  notice,  it  is  suflicicnt.  The  King  v.  Theodorick, 
8  Fast,  543.  A  meeting  may  be  general  for  most  purposes,  and  also  special  for 
a  particular  purpose ;  Cutbill  r.  Kingdom,  1  Fxch.  494. 

'  Savings  Bank  r.  Davis,  8  Conn.  191. 

•  77,  78 


78  PROCEEDINGS  UNDER  THE  CHAETER.         CH.  IV. 

appointed  for  the  transaction  of  business  of  this  character,  or  of 
all  business  of  the  corporation,  the  notice  must  state  the  business, 
or  the  action  upon  it  will  be  held  illegal  and  void> 

4.  But,  as  a  general  rule,  it  may  be  safely  affirmed,  perhaps, 
that  in  regard  to  general  meetings  of  the  company,  which  are  for 
the  transaction  of  all  business,  no  notice  of  the  particular  business 
to  be  done  is  necessary.^ 

And  all  the  members  of  the  corporation  are  presumed  to  have 
notice  of  their  stated  meetings  and  are  bound  by  the  proceedings 
at  such  meetings ;  but  there  is  no  presumption  that  they  know 
what  is  done  at  such  meetings,  so  as  to  affect  them  with  notice  of 
any  thing  done  there  contemplating  future  action  at  any  other  time 
than  the  stated  meetings.^ 

5.  The  adjournment  of  a  general  meeting  is  not  a  special  meet- 
ing, but  the  mere  continuance  of  the  general  meeting,  and  requires 
no  notice  of  the  business  to  be  transacted.^ 

But  if  the  adjourned  meeting  be  for  the  transaction  of  any  other 
business  than  the  mere  completion  of  the  unfinished  business  of 
the  stated  or  special  meeting,  as  the  case  may  be ;  and  more 
especially,  where  the  business  is  of  a  character  which  could  *  not 
have  been  legally  transacted  at  the  former  meeting,  it  will  not 
afford  any  warrant  for  its  legality,  that  it  is  done  at  an  adjourned 
meeting  from  one  legally  constituted  originally."  But  the  publi- 
city and   general   notoriety  of  a  transaction   may   be   sufficient 

*  Rex  V.  Doncaster,  2  Burr.  738 ;  Angell  &  Ames,  §§  488-496.  In  the 
case  of  Zabriskie  v.  C.  C.  &  C.  Railw.,  before  the  District  Court  for  the  North- 
em  District  of  Ohio,  10  Am.  Railw.  Times,  No.  15,  8.  c.  affirmed  23  How. 
(U.  S.)  381 ;  this  subject  is  discussed  by  Mr.  Justice  McLean,  and  he  concludes, 
that  where  the  question  to  be  determined  by  the  company  was  the  guaranty  of 
the  bonds  of  a  connecting  railway  to  a  large  amount,  under  the  statute  of  the 
state,  which  required  the  consent  of  a  meeting  of  the  shareholders,  in  which 
two-thirds  of  the  capital  stock  should  be  represented,  it  was  indispensable  that 
the  call  for  the  meeting  should  state  the  business  to  be  transacted,  and  should 
be  given  long  enough  before  the  time  of  the  meeting  to  enable  the  remotest 
shareholders  in  the  country  to  obtain  notice  and  be  able  to  attend,  or  commu- 
nicate with  their  agents,  or  proxies,  and  also  to  enable  the  resident  agents  of 
foreign  shareholders  to  communicate  with  the  owners.  This  seems  but  a  just 
and  reasonable  limitation  upon  the  power  of  corporations,  in  regard  to  special 
meetings. 

*  Warner  v.  Mower,  11  Vt.  385 ;  Wills  v.  Murray,  4  Exch.  843. 
«  The  People  v.  Batchelor,  22  N.  Y.  128. 

">  People  V.  Batchelor,  22  N.  Y.  128 ;  Scadding  v.  Lorant,  5  Eng.  L.  &  Eq. 
16.     See  Smith  v.  Law,  21  N.  Y.  296. 

*79 


§  20.  MEETINGS  OP   COMPANY.  79 

ground  for  presuming  knowledge  of  the  appointment  of  one  to  a 
corporate  office,  even  to  the  extent  of  subjecting  such  corporator 
to  a  penalty  for  non-acceptance.^ 

6.  By  the  English  statutes,  railways  may  act  in  either  of  three 
modes :  First,  By  the  general  assembly  of  the  shareliolders,  which, 
as  between  them  and  the  directors  and  other  agents  of  the  com- 
pany, has  supreme  control  of  its  affairs :  Second,  By  its  directors  : 
Third,  By  its  duly  constituted  agents.®  The  same  general  princi- 
ple is  applicable  in  this  country,  and  at  common  law. 

7.  And  where  the  by-laws  require  the  meetings  of  the  company 
to  be  held  at  a  particular  place,  as  the  counting-house  of  the 
company,  and  the  record,  or  evidence,  does  not  show  that  the 
meetings  were  held  at  a  different  place,  it  will  be  presumed  they 
were  held  at  the  place  designated.^® 

8.  Every  shareholder  is,  ordinarily,  entitled  to  participate  in  the 
meetings  of  members  of  the  corporation  duly  called,  and  to  vote 
upon  all  his  shares,  according  to  the  mode  prescribed  in  the  char- 
ter and  by-laws  of  the  company,  and  in  conformity  with  the  gen- 
eral laws  of  the  state.  But  it  seems  not  well  settled  whether  a 
by-law  of  the  corporation  will  be  sufficient  to  entitle  the  members 
to  vote  by  proxy,  and  whether  some  legislative  sanction  is  not 
requisite  to  that  effect."  But  where  the  charter  provided  that 
"  each  person  being  present  at  an  election  shall  be  entitled  to 
vote,"  it  was  held  to  mean  actual  presence,  and  votes  by  proxy 
were  properly  excluded.^ 

'  City  of  London  v.  Vanacre,  6  Mod.  438. 

»  Walford  on  Railways,  70. 

»'  McDaniels  r.  Flower  Brook  Man.  Co.,  22  Vt.  274. 

"  State  V.  Tudor,  6  Day,  329 ;  where,  in  mere  business  corporations,  it  was 
considered  that  a  by-law  was  sufficient  to  give  the  power  to  vote  by  proxy.  But 
in  Taylor  v.  Griswold,  2  Green,  222,  the  contrary  opinion  is  maintained.  See 
also,  2  Kent,  Coram,  294.  There  seems  no  question  that  in  public  and  elee- 
mosynary corporations  the  members  must  attend  in  person. 

"  Broom  »,  Coram.  2  Phila.  166. 


80 


PROCEEDINGS  UNDER  THE  CHARTER. 


CH.  IV. 


♦  SECTION  V. 


Election  of  Directors. 


1.  Should  be  at  general  meeting,  or  upon  spe- 

cial notice. 

2.  Shareholders  may  restrain  their  authority. 


3.  Company  bound  by  act  of  directors,  de 

facto. 

4.  Act  of  officer  de  facto,  binds  third  persons. 


§  22.  1.  The  election  of  directors  is  regarded  as  more  important 
to  the  interests  of  the  company  than  most  other  business,  inas- 
much as,  when  duly  elected,  they  hold  office  for  a  considerable 
term,  and  have  all  the  powers  of  the  corporation  in  regard  to  the 
transaction  of  its  ordinary  business,  unless  specially  restrained. 
They  should,  therefore,  be  elected  at  the  regular  meetings  of  the 
company,  and  even  vacancies  should  not  properly  be  filled  at 
special  meetings,  unless  special  notice  of  that  particular  business 
had  been  given  according  to  the  laws  of  the  company,  which 
include  its  charter  and  statutes,  and  the  general  laws  of  the 
state  applicable  to  the  subject. 

2.  The  shareholders  may,  in  a  proper  assembly,  pass  statutes, 
general  or  special,  which  shall  control  the  directors,  as  between 
them  and  the  company.^  Where  the  by-laws  of  the  company 
*  require  notice  of  the  meeting  for  electing  directors,  but  do  not 
specify  the  time  or  mode  of  such  notice,  it  must  be  given  accord- 

'  But  where  the  charter  vests  the  control  of  the  concerns  of  the  company  in 
a  select  board  or  body,  the  shareholders  at  large  have  no  right  to  interfere  with 
the  doings  of  these,  their  charter  agents.  Commonwealth  v.  Trustees  of  St. 
Mary's  Church,  6  Serg.  &  R.  508 ;  Dana  v.  Bank  of  the  United  States,  5  Watts 
&  Serg.  223,  247 ;  Conro  v.  Port  Henry  Iron  Co.,  12  Barb.  27.  And  courts 
are  always  reluctant  to  interfere  with  the  conduct  of  directors  of  a  corporation, 
even  at  the  instance  of  a  majority  of  the  shareholders,  and  ordinarily  will  not, 
when  such  directors  have  acted  in  good  faith.  State  v.  The  Bank  of  Louisiana, 
6  La.  745. 

But  in  Scott  V.  Eagle  Fire  Co.,  7  Paige,  198,  it  was  held,  that  the  directors 
of  a  joint-stock  corporation  may  be  compelled  to  divide  the  actual  surplus  profits 
of  the  company  among  its  stockholders  from  time  to  time,  if  they  neglect  or 
refuse  to  do  so,  without  any  reasonable  cause.  But  if  they  abuse  their  power  to 
make  dividends  of  surplus  profits,  by  dividing  the  unearned  premiums  received 
by  them,  without  leaving  a  sufficient  fund,  exclusive  of  the  capital  stock,  to 
satisfy  the  probable  losses  upon  risks  assumed  by  the  company,  it  seems  they 
will  be  personally  liable  to  such  creditors  of  the  company,  if,  in  consequence  of 
extraordinary  losses,  the  company  should  become  insolvent  so  as  to  be  unable 
to  pay  its  debts. 

*  80,  81 


§  22.  ELECTION   OP  DIRECTORS.  81 

iug  to  the  requircmeuts  of  Uie  general  statutes  of  the  state  upon 
the  subject.* 

3.  But  the  company  cannot  object  that  its  directors,  who  have 
acted  as  such,  were  not  elected  at  a  meeting  properly  notified.* 
Nor  can  the  validity  of  the  acts  of  the  directors  be  collaterally 
called  in  question  on  the  ground  of  irregularity  in  the  notice  of 
the  meeting  at  which  they  were  elected.*  Where  the  charter 
fixes  the  number  of  directors,  and  vacancies  occur,  the  act  of 
the  board  is  not  thereby  invalidated,  provided  a  quorum  still 
remains.* 

*  4.  An  election  of  directors  will  not  be  set  aside,  because  the 
inspectors  of  the  election  were  not  sworn  as  required  by  the  statute. 
This  statute  is  merely  directory,  and,  so  far  as  third  persons  are 

"  Matter  of  Long  Island  Railroad,  19  Wend.  37;  8.  c.  2  Am.  Railw.  C. 
458. 

'  Sampson  r.  Bowdoinbam  Steam  Mill  Co.,  36  Maine,  78.  Where  persons 
have  acted  as  directors  of  a  railway  company,  the  court  will  not  summarily 
inquire  into  the  validity  of  their  appointment.  Tindal,  C.  J.,  said:  "If  the 
shareholders  allow  parties  to  act  as  directors,  it  may  be  they  have  no  right  to 
tarn  round  in  a  court  of  justice  and  say,  that  such  parties  were  not  properly 
elected."  The  Thames  Haven  Dock  &  R.  Co.  v.  Hall,  6  Man.  &  Gr.  274-286. 
In  a  late  case.  Port  of  London  Assurance  Company^s  case,  5  De  6.  Mac.  &  G. 
465 ;  8.  c.  35  Eng.  L.  &  £q.  178,  one  registered  insurance  compahy  agreed  to  sell 
its  business  to  another  registered  insurance  company,  and  a  deed  of  assignment 
was  accordingly  executed,  whereby  the  latter  company  covenanted  to  indemnify 
the  former  against  all  claims.  After  the  business  had  been  carried  on  for  some 
time  by  the  purchasing  company,  that  company  failed,  and  both  companies  were 
wound  up  under  the  Winding-up  Acts.  On  the  official  manager  of  the  selling 
company  tendering  a  proof  against  the  purchasing  company,  in  respect  of  claims 
satisfied  by  the  selling  company,  one  part  of  the  deed  of  assignment  was  pro- 
duced having  affixed  to  it  the  seal  of  the  purchasing  company,  but  another  part, 
alleged  to  have  been  executed  by  the  selling  company,  was  not  forthcoming. 

Held,  first,  that  ailer  what  had  taken  place,  it  was  unnecessary  to  determine 
whether  the  selling  company  had  executed  the  purchase-deed,  or  whether  its 
directors  had  exceeded  their  powers  in  making  the  sale. 

Secondly,  that  where  a  purchaser  has  enjoyed  the  subject-matter  of  a  con- 
tract, every  presumption  must  be  made  in  favor  of  its  validity. 

Thirdly,  that  if  all  the  proceedings  on  the  part  of  the  directors  of  the 
purchasing  company,  with  reference  to  the  purchase,  had  not  been  in  strict 
accordance  with  their  own  deed  of  settlement,  still,  if  the  contract  with  the 
other  company  was  the  means  of  the  purchasing  company  coming  into  existence, 
they  could  not  act  in  contravention  of  that  contract. 

*  Chamberlain  c.  Painesville  &  Hudson  Railw.  Co.,  15  Ohio  N.  S.  226. 

»  Walford  on  Railw.  71,  72 ;  Thames  Haven  R.  r.  Rose,  4  M.  &  G.  662. 

6  •82 


82 


PROCEEDINGS  UNDER   THE  CHARTER. 


CH.  IV. 


concerned,  it  is  suJSicient  that  the  inspectors  were  elected  and  en- 
tered upon  the  duties  of  the  office,  and  became  officers  de  facto. ^ 


.SECTION    VI. 
Meetings  of  Directors. 


1.  AU  should  be  notified  to  attend. 

2.  Adjourned  meeting  still  the  same. 
8.  Board  not  required  to  be  kept  full. 

4.  Usurpations  tried  by  shareholders  or  courts. 

5.  Usage  will  often  excuse  irregularities. 


6.  Decisions  of  majority  valid. 

n.  8.   Records  of  Proceedings,  evidence. 

7.  The  action  must  be  taken  at  a  formal  meet- 

ing. 


§  23.  1.  As  a  general  rule,  where  corporate  powers  are  vested 
in  certain  members,  whether  the  whole  body  of  the  shareholders, 
the  directors,  or  a  committee,  and  the  general  laws  of  the  state,  the 
charter  of  the  company,  or  the  corporate  statutes,  contain  no 
directions  in  regard  to  assembling  the  body,  it  is  requisite  to  give 
due  legal  notice  to  each  member.  Accordingly,  when  by  the  rules 
of  a  friendly  society  the  power  of  electing  officers  was  vested  in  a 
committee  of  eleven,  at  a  meeting  of  the  committee,  where  ten  of 
the  members  were  present,  the  eleventh  not  having  received  notice, 
and  the  defendant  was  removed  from  the  office  of  treasurer,  and 
the  plaintiff  appointed  in  his  stead  by  a  majority  of  votes,  it  was 
held  that  the  election  was  void,  although  the  absent  committee-man 
had,  for  a  considerable  period,  absented  himself  from  the  meetings, 
and  intimated  an  intention  not  to  attend  any  more,  and  although 
the  defendant  himself  had  demanded  a  poll  at  the  election,  and 
was  now  objecting  to  its  validity.^ 

*  Matter  of  Mohawk  &  Hudson  River  Railw.  19  Wend.  135 ;  s.  c.  2  Am. 
Railw.  C.  460. 

'  Roberts  v.  Price,  4  C.  B.  231.  In  the  course  of  the  argument,  Cress^cell,  J. 
referred  to  The  King  v.  Langhorn,  4  Ad.  &  Ellis,  538,  and  in  giving  his  opinion 
said :  "  This  case  seems  to  me  directly  applicable."  In  a  late  case  in  the  House 
of  Lords,  Smyth  v.  Darley,  2  H.  L.  Cases,  789,  803,  it  is  said:  "The  election 
being  by  a  definite  body,  on  a  day,  of  which,  till  summons,  the  electors  had  no 
notice,  they  were  all  entitled  to  be  specially  summoned ;  and  if  there  were  any 
omission  to  summon  any  of  them,  unless  they  all  happened  to  be  present,  or 
unless  those  not  summoned  were  beyond  summoning  distance,  as,  for  instance, 
abroad,  there  could  not  be  a  good  electoral  assembly ;  and  even  an  unanimous 
election  by  those  who  did  attend,  would  be  void."  Post,  §  211 ;  Great  Western 
R.  V.  Rushout,  5  De  G.  &  S.  290 ;  a.  c.  10  Eng.  L.  &  Eq.  72. 


§  23.  MEETINGS   OF  DIEECTORS.  83 

•  2.  But  an  adjourned  general  meeting  of  directors,  which  is 
provided  for  by  the  general  regulations  of  the  board,  and  is  for 
the  transaction  of  the  general  business  of  the  company,  requires 
no  special  notice  of  either  time  or  place,  or  of  the  business  to  be 
transacted  .2 

3.  But  where  the  charter  of  a  railway  provides  that  its  busi- 
ness shall  be  carried  on  under  the  management  of  twelve  directors, 
to  be  elected  in  a  particular  mode,  pointed  out,  and  that  where 
vacancies  shall  occur  it  shall  be  lawful  for  the  remaining  directors 
to  fill  them,  it  was  held  that  this  provision  did  not  require  that 
the  board  should  be  always  full ;  but  was  merely  directory,  as  to 
the  mode  of  filling  vacancies.* 

4.  Where  it  is  complained  that  the  existing  board  of  directors 
have  usurped  their  places  in  violation  of  the  wishes  of  the  ma- 
jority of  the  shareholders,  the  question  should  be  referred  to  a 
meeting  of  such  shareholders,*  or  it  may  be  tried  upon  a  quo  war- 
ranto.^ 

6.  But  in  practice,  in  this  country,  it  is  believed  that  most  of 
the  routine  business  of  railway  and  other  joint-stock  commercial 
companies  is  transacted  through  the  agency  of  sub-committees  of 
the  board  of  directors,  and  that,  where  the  voice  of  the  board  is 
taken  it  is  more  commonly  done  without  any  formal  assembly  of 
the  board.  And  long-established  usage  as  to  particular  companies, 
in  regard  to  the  mode  of  conducting  an  election,  has  been  held  of 
binding  force  in  regard  to  such  company.^  And  *  the  same  course 
of  reasoning  might  induce  courts  to  sanction  a  practice,  which  had 
become  universal  from  its  great  convenience,  although  not  strictly 
in  accordance  with  the  principles  of  the  decided  cases  upon  analo- 
gous subjects,  or  the  results  of  a  priori  reasoning. 

6.  The  decision  of  a  majority  of  the  board  of  directors  is  usually 

•  Ante,  %  21.  Wills  r.  Murray,  4  Exch.  843.  But  see  Reg.  r.  Grimshaw,  10 
Q.  B.  747. 

^  Thames  Haven  Dock  and  Railway  Co.  v.  Rose,  4  Man.  &  6r.  552 ;  ante, 
§  21 ;  Wills  V.  Murray,  4.  Exch.  843. 

•  Post,  §  211. 
»  Post,  §  166. 

•  Attorney-General  c.  Davy,  cited  1  Vesey,  sen.  419.  It  would  savor  of  bad 
faith  to  allow  the  business  of  the  company  to  be  transacted  in  a  particular  mode, 
and  then  to  attempt  to  repudiate  the  acts  of  their  agents,  because  the  transac- 
tion proved  disadvantageous,  when  they  were  in  a  condition  to  take  the  benefit 
of  it  if  it  proved  successful. 

•83,84 


84  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

regarded  as  binding  upon  the  company ;  and  the  assembling  of  a 
majority  will  be  treated  as  a  legal  quorum  for  the  transaction  of 
business,  unless  the  charter  or  by-laws  contain  some  specific  pro- 
vision upon  the  subject ;  '^  and  notice  to  the  absent  directors  will 
be  presumed  unless  the  contrary  appears.  The  general  rule  upon 
this  subject  is,  that  the  act  of  a  majority  of  a  body  of  public  officers 
is  binding  ;  but  that  if  they  he  of  private  appointment^  all  must  act, 
and,  in  general,  all  must  concur,  unless  there  is  some  provision  to 
accept  the  decision  of  a  majority.  In  this  respect,  railway  direct- 
ors certainly  come  under  the  former  head.  The  proper  distinc- 
tion upon  the  general  subject  seems  to  be,  that  where  the  matter 
is  of  public  concern,  and  of  an  executive  or  ministerial  character, 
the  act  of  the  majority  of  the  board  will  suffice,  although  the 
others  are  not  consulted.  But  where  the  function  is  judicial, 
involving  a  determination  of  some  definite  question,  the  whole 
body  must  be  assembled  and  act  together.  If  the  matter  is  of  pub- 
lic concern,  the  decision  of  a  majority  will  bind ;  but  in  private 
concerns,  as  arbitrations,  all  must  concur.^ 

'  Cram  v.  Bangor  House,  3  Fairfield,  354 ;  Sargent  v.  "Webster,  13  Met.  497 ; 
2  Kent,  Comm.  293  and  notes ;  The  King'  ».  Whitaker,  9  B.  «&  C.  648 ;  Com- 
monwealth V.  Canal  Commissioners,  9  Watts,  466  ;  Ex  parte  Willcocks,  7  Cowen, 
402 ;  Field  v.  Field,  9  Wend.  394,  403,  where  it  is  held,  that  in  regard  to  the 
body  of  the  stockholders,  any  number  who  attend  is  a  quorum  for  doing  business, 
if  the  others  be  properly  summoned.  But  as  to  the  directors,  it  is  requisite  that 
a  majority  attend.  2  Kent,  Comm.  293 ;  Cahill  v.  Kalamazoo  Ins.  Co.,  2  Doug. 
(Mich.)  124;  Holcomb  v.  N.  H.  D.  B.  Co.,  1  Stockton,  Ch.  457. 

8  Green  v.  Miller,  6  Johns.  39;  The  King  v.  Great  Marlow,  2  East,  244; 
Battye  v.  Gresley,  8  East,  319 ;  Rex  v.  Cobi  St.  Aldwins,  Burr.  Settl.  Cas.  136 ; 
The  King  v.  Winwick,  8  T.  R.  454.  But  it  has  never  been  held  that  the  entire 
board  of  directors  must  assemble ;  it  is  enough  if  all  be  summoned,  and  a 
majority  attend.  See  note  7.  Edgerly  r.  Emerson,  3  Foster,  555.  If  the 
doings  of  directors  are  not  recorded,  they  may  be  proved  by  parol.  lb.  The 
president  has  a  right  to  vote  upon  all  questions  to  be  determined  by  the  presi- 
dent and  directors.     McCuUough  v.  Annapolis  &  Elk  Ridge  R.  4  Gill,  58. 

The  records  of  the  clerk  of  a  railway  company,  of  the  proceedings  of  the 
directors,  in  making  calls,  may  be  used  as  evidence  by  the  company  in  suits  for 
calls,  against  one  who  subscribed  for  shares,  and  was  one  of  the  grantees  of  the 
charter  and  a  director  at  the  time  of  making  such  calls,  and  who  had  exercised 
the  rights  of  a  shareholder  from  the  first.  White  Mountain  R.  v.  Eastman,  34 
N.  H,  124.  As  to  the  effect  of  the  records  of  the  doings  of  the  corporation  kept 
by  their  own  officer,  being  evidence,  but  not  indispensable  evidence  of  such  facts, 
when  proved  by  third  parties,  see  Hudson  r.  Carman,  41  Me.  84 ;  Coffin  r.  Col- 
lins, 17  Id.  440;  Penobscot  Railw.  r.  White,  41  Me.  612.  See,  also,  Ind.  & 
Cin.  R.  V.  Jewett,  16  Ind.  273. 


§24. 


QUALIFICATION  OP  DIBECT0R8. 


85 


*  7.  But  where  the  authority  of  a  quorum  of  directors  is  required 
for  the  execution  of  a  bond,  it  must  be  given  at  a  formal  meeting, 
whereat  the  members  of  the  quorum  are  all  present  at  once.® 


SECTION  VII. 


Qualificaiion  of  Directors. 


1.  One  cannot  be  a  contractor  and  director. 

2.  May  be  their  banixr  and  director. 

8.  Matf  be  director  bjf  virtue  of  stock  mort- 
gage. 


4.  Bankruptcy  or  absence  will  not  vacate 

office. 

5.  Company  compelled  to  Jill  vacancies  in 

board. 


§  24.  1.  By  the  Companies'  Clauses  Consolidation  Act,^  it  is 
provided,  that  no  person  interested  in  any  contract  with  the  com- 
pany shall  be  a  director,  and  no  director  shall  be  capable  of  being 
interested  in  any  contract  with  the  company ;  and  if  any  director, 
subsequent  to  his  election,  shall  be  concerned  in  any  such  con- 
tract, the  office  of  director  shall  become  vacant,  and  he  shall  cease 
to  act  as  such.  Under  this  statute  it  was  held,  that,  if  a  director 
enters  into  a  contract  with  the  company,  the  contract  is  not  thereby 
rendered  void,  but  the  office  of  director  is  vacated.^ 

*  2.  But  it  has  been  held,  that  being  a  member  of  a  banking  com- 
pany, who  were  the  bankers  and  treasurers  of  the  railway,  and 
who,  as  such,  received  and  gave  receipts  for  calls,  and  paid  checks 
drawn  by  the  directors,  will  not  disqualify  one  from  acting  as 
director,  but  that  this  clause  only  applied  to  such  contracts 
as  were  made  with  the  company  in  the  prosecution  of  its  enter- 
prise.^ 

8.  Where  the  qualification  of  a  director  consisted  in  owning  a 
certain  number  of  the  shares,  the  qualification  is  not  lost  by  a 
mortgage  of  the  shares.* 

4.  Neither  the  bankruptcy  nor  absence  of  a  director,  and  volun- 

»  D'Arcy  v.  Tamar,  K.  &  C.  Railw.,  4  H.  &  C.  463 ;  8.  c.  12  Jur.  N.  S.  648. 

«  8  &  9  Vict.  c.  16. 

»  Foster  v.  Oxford  W.  &  W.  R.,  13  C.  B.  200;  8.  C.  14  Eng.  L.  &  Eq.  806. 
This  case  is  discussed  in  a  later  case  in  the  House  of  Lords.  Aberdeen  Rail- 
way V.  Blakie,  1  McQueen,  H.  &  L.  461. 

»  Sheffield,  Ash.  &  Man.  RaUw.  v.  Woodcock,  7  M.  &  W.  674;  8.  c.  2  RaUw. 
C.  622. 

*  Gumming  r.  Prescott,  2  Y.  &  CoU.  Eq.  Exch.  488. 

•86,86 


86  PROCEEDINGS  UNDER  THE  CHARTER.         CH.  IV. 

tarily  ceasing  to  act  as  such,  will  put  an  end  to  his  character  of 
director,  unless  it  be  so  provided  in  the  deed  of  settlement.^ 

5.  If  shareholders  are  dissatisfied  with  the  board  of  directors  not 
being  full,  that  may  be  a  ground  of  applying  for  a  mandamus  to 
compel  the  company  to  complete  the  number.^ 

*  Phelps  r.  Lyle,  10  Ad.  &  Ellis,  113.  But  if  one  abscond  from  his  creditors 
the  office  is  thereby  vacated.     Wilson  r.  Wilson,  6  Scott,  540. 

*  Thames  Haven  Dock  &  Railway  v.  Rose,  3  Railw.  C.  177,  s.  c.  4  Man. 
&  Gr.  552.  Maule,  J.  Mozley  v.  Alston,  1  Phillips,  790.  By  the  Lord  Chan- 
cellor. 


§  25.  PREROGATIVE  FRANCHISES.  87 


•CHAPTER    V. 


PREROGATIVE  FRANCHISES. 


1.    Control  of  internal  communication  in  a  |  2.   Such  a  grant  confers  potcert  pertaining 
state  a  prerogative  fianchise.  exdusively  to  sovereignty,  as  taking  tolls, 

I  emd  the  right  of  eminent  domain. 

§  25.  1.  Railways  possess  also  many  extraordinary  powers  or 
franchises  which  partake  more  or  less  of  the  quality  of  sovereignty, 
and  which  it  is  not  competent  for  the  legislature  even  to  delegate  to 
ordinary  corporations.  These  are  sometimes  called  the  preroga- 
tive franchises  of  the  corporation.  They  exist  in  banks,  which 
practically  supply  the  currency  of  the  country,  or  its  representative, 
and  railways,  which  have  already  engrossed  the  chief  business  of 
internal  communication  in  this  country,  and  almost  throughout  the 
civilized  world.  And  both  currency  and  internal  communication 
between  different  portiohs  of  a  state  are  exclusively  the  preroga- 
tives of  sovereignty. 

2.  In  saying  that  it  is  not  competent  for  the  legislature  to  con- 
fer prerogative  franchises  upon  all  corporations,  nothing  more  is 
intended  than  that  these  prerogative  franchises  do  not  appertain  to 
all  the  operations  of  business,  and  must  therefore  of  necessity  be 
limited  to  those  persons,  whether  natural  or  artificial,  which  are 
occupied  in  matters  of  a  sovereign  or  prerogative  character,  and 
which  thus  render  an  equivalent  for  the  franchises  conferred.^  This 
subject  will  be  discussed  more  in  detail  under  the  titles  of  Tolls 
and  Eminent  Domain. 

'  State  r.  Boston,  Concord,  &  Montreal  R.  Co.,  25  Vt.  433,  442,  443.  The 
right  to  build  and  use  a  railway,  and  take  tolls  or  fares,  is  a  franchise  of  the 
prerogative  character,  which  no  person  can  legally  exercise  without  some  special 
grant  of  the  legislature.  But  it  is  competent  for  the  legislature  to  confer  this 
franchise  upon  a  foreign  corporation,  so  as  to  enable  it  to  take  land  for  the  pur- 
pose of  constructing  a  public  improvement  in  the  state.  Morris  Canal  &  Bank- 
ing Co.  e.  Townsend,  24  Barb.  658.  And  what  title  shall  be  acquired  by  such 
foreign  corporation,  and  whether  the  proposed  amendment  will  be  likely  to  prove 
beneficial  to  the  citizens  of  the  state,  is  a  question  solely  within  the  discretion  of 
the  legislature.     lb. 

•87 


88  BY-LAWS   AND  STATUTES.  CH.  VI. 


♦CHAPTER    VI. 

BY-LAWS   AND  STATUTES. 

SECTION    L 

Power  of  mahing-  By-Laws  or  Statutes. 

1.  May  control  conduct  of  passengers.  '     8.  Public  statutes  control  by-laws, 

2.  Must  be  reasonable  and  not  against  law.       '     9.  Cannot  impose  penalty. 

8.   Power  may  be  implied,  where  n(A  express.  10.   Cannot  refuse  to  be  responsible/or  baggage. 

4.   Nu  required  to  be  in  any  particular  form  11.  Statutes  operate  upon  members  from  pro- 

unless  by  special  provision.  mulgation ;  upon  others,  from  knowledge 

6.  Model  code  of  by-laws  framed  by  board  of  of  the  same. 

trade  in  England.  12.   Regulations,  for  accommodation  of  pas- 

7.  Company  may  demand  higher  fare  if  paid  !  sengers,  mttst  yield  to  the  right  of  others 

in  cars.  !  to  be  carried. 

§  26.  1.  It  is  incident  to  all  corporations  to  enact  by-laws  or 
statutes  for  the  control  of  its  officers  and  agents,  and  to  regulate 
the  conduct  of  its  business  generally.  And  in  the  case  of  rail- 
ways this  includes  the  regulation  of  the  conduct  of  passengers 
and  others  who  are  in  any  way  connected  with  them  in  business, 
although  not  their  agents. 

2.  This  power  is  subject  to  some  necessary  limitations.  Such 
by-laws  must  not  infringe  the  charter  of  the  company  or  the  laws 
of  the  state,  must  not  be  unreasonable,  and  must  be  within  the 
range  of  the  general  powers  of  the  corporation.^  And  the  ques- 
tion, whether  reasonable  or  not,  is  to  be  determined  by  the  jury 
under  instructions  from  the  court,  being  a  mixed  question  of 
law  and  fact.^    But  in  a  recent  case  in  New  Jersey  ^  it  was  decided 

»  Elwood  V.  Bullock,  6  Q.  B.  383  ;  Calder  Navigation  Co.  v.  Pilling,  14  M.  & 
W.  76 ;  Child  v.  Hudson  Bay  Co.,  2  Peere  Wnis.  207 ;  Angell  &  Ames,  c.  10; 
2  Kent,  Coram.  296 ;  Davis  v.  Meeting  H.  in  Lowell,  8  Met.  331.  In  a  recent 
case  in  Kentucky  it  is  said  the  power  of  a  corporation  to  make  by-laws  is  limited 
by  the  nature  of  the  corporation  and  the  laws  of  the  country.  It  can  make  no 
rule  contrary  to  law,  good  morals,  or  public  policy.  Say  re  v.  Louisville  Union 
Benevolent  Association,  1  Duvall,  143. 

«  Day  V.  Owen,  5  Mich.  520. 

'  Ayres  v.  Morris  &  Essex  Railw.  Co.,  5  Dutcher,  393.' 
•88 


§  26.  POWER   OP   MAKING   BY-LAWS  OR  STATUTES.  89 

*  that  the  question  whether  the  regulation  of  a  corporation  affecting 
third  persons  is  reasonable  is  a  question  of  fact ;  but  the  validity 
of  a  by-law  of  a  corporation,  which  affects  only  its  members,  is  a 
question  of  law  to  be  determined  by  the  court. 

The  general  powers  of  business  corporations  to  enact  by-laws 
was  extensively  and  learnedly  discussed  in  a  somewhat  recent 
case  which  passed  through  the  Queen's  Bench,  the  Exchequer 
Chamber,  and  was  finally  determined  in  the  House  of  Lords.* 
The  case  turned  mainly  upon  the  reasonableness  of  the  by-law, 
which  excluded  any  person  who  had  become  bankrupt  or  noto- 
riously insolvent  from  becoming  one  of  the  governing  body  of  the 
company.  The  provision  of  the  by-law  was  held  entirely  reasona- 
ble ;  but  that  having  admitted  the  party  to  the  office,  he  could  not 
be  removed  without  formal  proceeding  upon  notice  and  hearing. 
And  where  one  part  of  a  by-law  is  reasonable  it  may  stand,  although 
connected  with  another  part  which  is  not  reasonable.^ 

3.  By-laws  in  violation  of  common  rights  are  void.^  The  power 
to  make  by-laws  is  usually  given  in  express  terms  in  the  charter. 
And  where  such  power  to  make  by-laws  is  given  in  the  charter 
upon  certain  subjects  to  a  limited  extent,  this  has  been  regarded 
as  an  implied  prohibition  beyond  the  limits  expressed,  upon  the 
familiar  maxim  Expressum  facit  cessare  taciturn.' 

4.  By-laws,  unless  by  the  express  provisions  of  the  charter  or 
general  statutes  of  the  state,  are  not,  in  this  country,  required  to 
be  enacted  or  promulgated  in  any  particular  form,  but  only  to  be 
enacted  at  some  legal  meeting  of  the  corporation.  But  in  England 
it  is  generally  considered  requisite  that  by-laws  be  made  under  the 
common  seal  of  the  corporation,  and  that  in  regard  to  railways, 
by-laws  affecting  those  who  are  not  officers  or  servants  *  of  the  com- 
pany should  have  tlie  approval  of  the  Board  of  Trade  or  Railway 
Commissioners.^ 

5.  By  many  of  the  special  railway  charters  in  England,  and  by 
the  Companies'  Clauses  Consolidation  Act  of  1845,  it  is  provided 

*  Reg  V.  Saddlers'  Company,  6  Jur.  N.  S.  1118;  s*.  c.  7  id.  138;  8.  c.  9  id. 
1081 ;  8.  c.  4  B.  &  S.  1059 ;  s.  c.  10  Ho.  Ld«.  Cas.  404. 

»  Reg.  V.  Lundie,  8  Jur.  N.  S.  640. 

•  Hayden  v.  Noyes,  6  Conn.  391 ;  Adlcy  r.  The  Whitstable  Co.,  17  Vcsey, 
315 ;  Clark's  case,  6  Coke,  64.  When  the  penalty  of  a  by-law  is  imprisonment, 
it  is  void  as  against  Magna  Charta.     But  such  power  may  be  given  by  statute. 

»  Child  r.  Hudson  B.  Co.,  2  Peere  Wms.  207, 
«  Walford,  249 ;  Hodges,  662,  663. 

•89,90 


90  BY-LAWS  AND   STATUTES.  CH.  VI. 

that  railway  companies  may  make  by-laws  under  their  common 
seal "  for  the  purpose  of  regulating  the  conduct  of  the  officers  and 
servants  of  the  company,  and  for  the  due  management  of  the  affairs 
of  the  company  in  all  respects  whatever."  And  they  have  power 
to  enforce  such  by-laws,  by  penalty,  and  by  imprisonment  for  the 
collection  of  such  penalty.  But  a  by-law  requiring  a  passenger, 
not  producing  or  delivering  up  his  ticket,  to  pay  fare  from  the  place 
of  the  departure  of  the  train,  was  held  not  to  be  a  by-law,  impos- 
ing a  penalty,  and  therefore  not  justifying  the  imprisonment  of 
such  passenger.^ 

6.  The  statute  requires  a  copy  of  such  by-laws  to  be  furnished 
every  officer  and  servant  of  the  company,  liable  to  be  affected 
thereby.  The  code  of  by-laws  framed  by  the  Board  of  Trade  in 
England  for  the  regulation  of  travel  by  railway,  and  generally 
adopted  there,  is  certainly  very  judicious  ;  and  if  some  similar  one 
could  be  adopted  and  enforced  here,  it  would  accomplish  very 
much  towards  security,  sobriety,  and  comfort,  in  railway  travelling, 
and  tend  to  exempt  the  companies  from  much  annoyance  and  very 
often  from  loss.^^ 

»  Chilton  V.  London  &  Croydon  R.,  16  M.  &  W.  212;  s.  c.  5  Railw.  C.  4. 
Parke,  B.  says :  "  This  is  not  the  case  of  a  penalty,  but  the  mere  demand  of  a 
fare.  Any  passenger  who  does  not,  at  the  end  of  his  journey,  produce  his  ticket, 
may  have  broken  his  contract  with  the  company,  and  be  liable  to  pay  his  full  fare 
from  the  most  remote  terminus.  But  this  is  not  a  penalty  or  forfeiture,  under 
section  163,  giving  a  right  to  arrest  for  non-payment  of  a  penalty  or  forfeiture." 
See,  also,  the  opinion  of  Rolfe,  B.,  from  which  it  appears  that  the  by-law  was 
considered  valid. 

'"  Hodges,  453.  "  1.  No  passenger  will  be  allowed  to  take  his  seat  in  or  upon 
any  of  the  company's  carriages,  or  to  travel  therein  upon  the  said  railway,  with- 
out having  first  booked  his  place  and  paid  his  fare.  Each  passenger  booking 
his  place  will  be  furnished  with  a  ticket,  which  he  is  to  show  when  required  by 
the  guard  in  charge  of  the  train,  and  to  deliver  up  before  leaving  the  company's 
premises,  upon  demand,  to  the  guard  or  other  servant  of  the  company  duly  au- 
thorized to  collect  tickets.  Each  passenger  not  producing  or  delivering  up  his 
ticket  will  be  required  to  pay  the  fare  from  the  place  whence  the  train  originally 
started. 

"2.  Passengers  at  the  road  stations  will  only  be  booked  conditionally,  that  is 
to  say,  in  case  there  should  be  room  in  the  train  for  which  they  are  booked ;  in 
case  there  shall  not  be  room  for  all  the  passengers  booked,  those  booked  for  the 
longest  distance  shall  have  the  preference ;  and  those  booked  for  the  same  dis- 
tance shall  have  priority  according  to  the  order  in  which  they  are  booked. 

"  3.  Every  person  attempting  to  defraud  the  company,  by  riding  in  or  upon 
any  of  the  company's  carriages,  without  having  previously,  paid  his  fare,  or  by 
riding  in  or  upon  a  carriage  of  a  higher  class  than  t}iat  for  which  he  has  booked 


§  26.  POWER   OP  MAKING   BY-LAWS  OR  STATUTES.  91 

*  7.  Ill  a  recent  case  in  Vermont,  it  was  held,  that  railway  com- 
panies have  the  power  to  make  and  enforce  all  reasonable  regula- 
tions in  regard  to  the  conduct  of  passengers,  and  to  discriminate 
between  fares  paid  in  the  cars  and  at  the  stations,  and  to  remove 
all  persons  from  their  cars  who  persist  in  disregarding  such  regula- 
tions, in  a  reasonable  manner  and  proper  place,  although  between 
stations. 

8.  But  this  may  be  controlled  as  to  existing  railways  even,  by 
general  legislation  of  the  state.  And  where  a  statute  gave  all 
railways  the  power  to  remove  those  who  violated  any  of  the  by- 
*  laws  or  regulations  of  the  company  from  their  cars,  at  the  regular 
stations,  this  was  held  to  carry  an  implied  prohibition  from  remov- 
ing such  persons  at  other  points.^^  And  where  one  refuses  to  pay 
faro,  and  the  train  is  stopped  for  the  purpose  of  putting  him  oflF 
the  train,  at  a  dwelling-house,  as  by  the  statute  of  New  York  is 

his  place,  or  by  continuing  his  journey  in  or  upon  any  of  the  company's  carriages 
beyond  the  destination  for  which  he  has  paid  his  fare,  or  by  attempting  in  any 
other  manner  whatever  to  evade  the  payment  of  his  fare,  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings. 

"  4.  Smoking  is  strictly  prohibited  both  in  and  upon  the  carriages,  and  in  the 
company's  stations.  Every  person  smoking  in  a  carriage  is  hereby  subjected  to 
a  penalty  not  exceeding  forty  shillings ;  and  every  person  persisting  in  smoking 
in  a  carriage  or  station,  after  being  warned  to  desist,  shall,  in  addition  to  incur- 
ring a  penalty  not  exceeding  forty  shillings,  be  immediately,  or,  if  travelling, 
at  the  first  opportunity,  removed  from  the  company's  premises,  and  forfeit  his 
fare. 

"5.  Any  person  found  in  the  company's  carriages  or  stations  in  a  state  of 
intoxication,  or  committing  any  nuisance,  or  otherwise  wilfully  interfering  with 
the  comfort  of  other  passengers,  and  every  person  obstructing  any  of  the  com- 
pany's officers  in  the  discharge  of  their  duty,  is  hereby  subjected  to  a  penalty 
not  exceeding  forty  shillings,  and  shall  immediately,  or,  if  travelling,  at  the 
first  opportunity,  be  removed  from  the  company's  premises  and  forfeit  his  fare. 

"  6.  Any  passenger  cutting  the  linings,  removing  or  defacing  the  number- 
plates,  breaking  the  windows,  or  otherwise  wilfully  damaging  or  injuring  any  of 
the  company's  carriages,  shall  forfeit  and  pay  a  sum  not  exceeding  £5  in  addi- 
tion to  the  amount  of  damage  done." 

^^  Note.  —  Persons  wilfully  obstructing  the  company's  officers,  in  cases  where 
personal  safety  is  concerned,  are  liable,  under  the  3  &  4  Vict.  c.  97,  section  16, 
to  be  apprehended  and  fined  £5,  with  two  months'  imprisonment  in  default  of 
payment." 

"  Stiiphin  V.  Smith,  29  Vt.  160;  Chicago,  Burlington  &  Quincy  R.  ».  Parks, 
18  HI.  460.  See  late  case  in  New  Hampshire,  in  which  it  is  held,  railways 
may  lawfully  discriminate  between  fare  paid  in  the  cars  and  at  the  stations. 
Hiiliard  v.  Goold,  34  N.  H.  230,  post,  §  28,  n.  17.     Post,  §  160. 

•91,92 


92  BY-LAWS   AND   STATUTES.  CH.  VI. 

allowed,  the  right  of  the  conductor  is  not  affected  by  a  subsequent 
offer  to  pay  fare.^  So,  too,  one  may  be  ejected  from  the  cars  by 
the  conductor  for  disorderly  conduct,  and  in  justification,  it  ie  com- 
petent to  prove  any  improper  conduct  during  the  entire  passage, 
and  this  cannot  be  controverted  by  general  evidence  of  the  good 
reputation  of  the  person  for  sobriety.  And  one  may  be  expelled, 
also,  for  refusing  to  surrender  his  ticket  to  the  conductor  on 
request,  in  conformity  with  the  general  regulations  of  the  com- 
pany.^3 

9.  But  it  has  been  held,  that  a  general  power  to  make  by-laws 
for  the  regulation  of  the  use  of  a  canal,  will  not  justify  the  pro- 
prietors in  closing  the  navigation  of  the  canal  on  Sundays,^*  nor 
in  making  by-laws  subjecting  the  shares  to  forfeiture  for  non-pay- 
ment of  calls,  unless  that  power  is  expressly  given  by  the  charter 
or  by  statute. ^^ 

10.  And  a  by-law  declaring  that  the  company  would  not  be 
responsible  for  a  passenger's  baggage,  unless  booked  and  the  car- 
riage paid,  is  bad,  as  inconsistent  with  the  general  law,  allowing 
railway  passengers  to  carry  a  certain  amount  and  kind  of  bag- 
gage.i^ 

*11.  The  members  of  a  joint-stock  company  are  affected  by  all 
binding  statutes  of  the  corporation  from  the  time  of  their  enact- 
ment, without  any  formal  notice  of  their  existence.  And  all  per- 
sons legally  affected  by  such  statutes,  rules,  or  by-laws  of  the 
corporation,  must  conform  to  their  requirements  from  the  time 
they  become  aware  of  their  existence. ^'^ 

12.  Regulations  as  to  the  accommodation  of  passengers  must 
yield  to  the  rights  of  others  to  be  carried,  and  the  accommodation 
of  passengers  during  the  transit  is  subject  to  such  general  rules 

»  People  V.  Jillson,  3  Parker,  C.  234. 

"  People  V.  Caryl,  3  Parker,  C.  326. 

"  Calder  Nav.  Co.  v.  Pilling,  14  M.  &  W.  76 ;  8.  c.  3  Railw.  C.  735.  But  it 
is  questionable  whether  this  case  is  maintainable,  in  this  country,  upon  any  such 
grounds. 

'*  Matter  of  Long  Island  Railw.  19  Wend.  37 ;  8.  c.  2  Am.  Railw.  C.  453. 

»«  Williams  v.  Great  Western  Railway,  10  Exch.  15 ;  s.  c.  28  Eng.  L.  &  Eq. 
439.  But  it  seems  somewhat  questionable,  whether  the  principle  of  this  decision 
can  ultimately  be  maintained.  It  seems  to  be  no  reasonable  abridgment  of  the 
right  of  a  passenger  to  carry  a  certain  weight  and  kind  of  baggage,  to  require  it 
to  be  booked  and  carriage  paid. 

"  Woodfin  p.  Ins.  Co.,  6  Jones'  Law,  658. 
*93 


§27. 


BY-LAWS   REGULAXmO  STATIONS  AND   GROUNDS. 


93 


and  regulations  as  the  company  see  fit  to  make,  provided  they  are 
reasonable,  and  whether  that  be  so  is  to  be  determined  by  the 
jury,  under  suitable  instruction  from  the  Court.  But  these  rules 
and  regulations  must  have  for  their  object  the  accommodation  of 
the  passengers  generally,  and  must  be  of  a  permanent  nature,  and 
not  made  for  a  particular  emergency  or  occasion.^^ 


SECTION    II, 


By-Laws  regulating  the  use  of  stations  and  grounds. 


1.  Mcaf  exdude  penotu  wUhout  business. 

2.  Maif  regulate  the  conduct  of  others. 

8.    Superintendent  may  expel  far  violation  of 

rules. 
4.   Probable  cause  willjxtstijy. 
6.   In  civil  suit  must  prove  violation  of  rules. 
6.    Regulation  of  stations  and  traffic  by  means 

of  injunction.     Equality  of  charges. 


7.  Through  trains  will  not  be  required  unlest 

reasonably  necessary  for  public  accom- 
modation. 

8.  Mode   of  enforcing  search  uxirrants  in 

freight  stations. 

9.  The  right  of  railway  companies  to  exclude 

persons  having  no  business,  from  their 
stations. 


§  27.  1.  Questions  have  sometimes  been  made,  in  regard  to  the 
right  of  railway  companies  to  exclude  persons  from  their  grounds, 
who  had  no  business  to  transact  there,  connected  with  the  com- 

•*  Day  r.  Owen,  5  Mich.  620.  We  are  aware  it  is  the  practice  in  America,  in 
almost  all  modes  of  passenger  transportation,  to  cram  the  carriages  to  the  point 
of  suffocation  almost,  if  passengers  offer.  But  that  is  never  attempted  or  allowed, 
in  England,  or  upon  the  Continent.  Whenever  the  seats  in  a  carriage,  or  the 
accommodations  in  a  boat,  are  all  occupied,  no  more  are  allowed  to  enter  the 
carriage  or  the  boat.  This  sometimes  results  in  putting  a  first-class  passenger 
into  a  second-class  carriage,  and  vice  versa.  But  no  man  in  Europe  would  ever 
be  allowed  to  take  passage  in  a  railway  carriage,  without  having  a  seat.  It 
would  be  deemed  the  height  of  indiscretion,  almost  bordering  on  madness,  to 
attempt  to  transport  passengers  by  railway,  in  a  standing  position.  And  even 
in  omnibuses  no  one  can  enter  after  the  scats  are  filled.  And  in  Baris  a  promi- 
nent sign,  "  Completj^''  is  exposed,  the  moment  the  carriage  is  fuU. 

And  it  seems  to  us  that  a  passenger-carrier  who  is  supplied  with  sufficient 
accommodations  for  all  who  ordinarily  offer,  had  better  be  excused  from  carrying 
any  excess  which  might  occasionally  offer,  than  be  compelled  to  carry  them  at 
the  expense  of  the  discomfort  and  suffering  of  all  the  other  passengers.  We 
think  at  least  if  railways  took  this  ground,  upon  the  score  of  safety  merely,  they 
would  not  fail  to  be  sustained  by  the  courts,  unless  the  excited  rush  of  all,  to  go 
by  the  first  chance,  is  to  override  all  other  considerations,  either  of  safety  or 
convenience.  And  we  trust  that  public  opinion  here  is  more  reasonable  than 
to  make  any  such  demands. 


94  BY-LAWS   AND   STATUTES.  CH.  VI. 

pany,  or  to  establish  regulations  or  by-laws  to  govern  the  conduct 
of  such  persons  as  had  occasion  to  come  there,  and  to  exclude 
others.  But,  upon  the  whole,  there  seems  little  ground  to  ques- 
tion the  right.^ 

2.  A  railway  corporation  has  authority  to  make  and  carry  into 
effect  reasonable  regulations  for  the  conduct  of  all  persons  using 
the  railway,  or  resorting  to  its  depots,  without  prescribing  such 
regulations  by  formal  by-laws ;  and  the  superintendent  of  a  rail- 
way station,  appointed  by  the  corporation,  has  the  same  authority, 
by  delegation. 

3.  Such  superintendent  may  exclude  from  the  stations  and 
grounds  persons  who  persist  in  violating  the  reasonable  regulations 
prescribed  for  their  conduct,  and  thereby  annoy  passengers,  or 
interrupt  the  officers  and  servants  of  the  company  in  the  discharge 
of  their  duty.  Thus,  where  the  entrance  of  innkeepers  and  their 
servants  into  a  railway  station  to  solicit  passengers  to  *  go  to  their 
houses,  produces  such  eflfect,  they  may  be  excluded  from  coming 
within  the  station  ;  and  if,  after  notice  of  a  regulation  to  that 
effect,  they  attempt  to  violate  it,  and  after  notice  to  leave,  refuse 
to  do  so,  they  may  be  forcibly  expelled  by  the  servants  of  the 
company,  using  no  unnecessary  force. 

4.  And  where  an  innkeeper  had  been  accustomed  to  annoy  pas- 
sengers in. this  manner,  and  had  been  informed  by  the  superintend- 
ent of  the  station  that  he  must  do  so  no  more,  but  still  continued 
the  practice,  and  afterwards  obtained  a  ticket  for  a  passage  in  the 
cars,  with  the  bona  fide  intention  of  entering  the  cars  as  a  pas- 
senger, and  went  into  the  station  on  his  way  to  the  cars,  and  the 
superintendent,  believing  he  had  entered  for  his  usual  purpose, 
ordered  him  to  go  out,  and  he  did  not  exhibit  his  ticket,  nor  give 
notice  of  his  real  intention,  but  pushed  forward  towards  the  cars, 
and  the  superintendent,  and  his  assistants  removed  him  from  the 
station,  using  no  unnecessary  force,  the  removal  is  justifiable,^  and 
not  an  indictable  offence. ^ 

6.  But  the  superintendent  cannot  remove  a  person  from  the 
station  and  grounds  of  the  company,  merely  because  such  person, 
in  the  judgment  of  the  superintendent,  and  witliout  proof  of  the 
fact,  violated  the  regulations  of  the  company,  or  conducted  himself 

»  Barker  v.  Midland  Railw.  18  C.  B.  46  ;  8.  c.  36  Eng.  L.  &  Eq.  253 ;  Common- 
wealth V.  Power,  7  Met.  596  ;  8.  c.  1  Am.  Railw.  C.  389 ;  Hall  r.  Power,  12  Met.  482. 
«  Commonwealth  r.  Power,  7  Met.  696 ;  Markham  v.  Brown,  8  N.  H.  523. 
•94 


§  27.  BY-LAW8   REGULATING   STATIONS  AND   GROUNDS.  95 

offensively  towards  the  superintendent.^    And  it  was  said  if  such 
person  is  removed  for  an  alleged  violation  of  the  regulations  of 

'  Hall  r.  Power,  12  Met.  482,  8.  c.  1  Am.  Railw.  C.  410.  There  is  an  ap- 
parent discrepancy  in  the  manner  of  stating  the  point  of  the  decision  of  this  case, 
and  that  of  The  Commonwealth  p.  Power,  7  Met.  596,  in  regard  to  defendant 
being  justified,  if  he  acted  in  good  faith,  upon  probable  cause,  which  does  not 
seem  to  be  warranted,  by  any  recognized  distinction,  between  a  civil  suit,  for 
damages,  and  a  public  prosecution  for  assault  and  batter)',  but  the  court  evi- 
dently intend  no  distinction  in  the  cases.  The  law  is  well  stated,  by  Shaw,  Ch. 
J.,  in  the  former  case,  7  Met.  602 :  "We  are  therefore  of  opinion,  that  upon  the 
evidence  detailed  in  the  judge's  report,  the  jury  should  be  instructed  in  a  man- 
ner somewhat  as  follows  :  That  if  Power  had  been  placed  in  charge  of  the  depot 
by  the  corporation,  as  superintendent,  he  had  all  the  authority  of  the  cor|)ora- 
tion,  both  as  owners  and  occupiers  of  real  estate,  and  also  as  carriers  of  passen- 
gers, incident  to  the  duty  of  control  and  management :  That  this  power  and 
authority  of  the  corporation  extended  to  the  reasonable  regulation  of  the  conduct 
of  all  persons  using  the  railroad,  or  having  occasion  to  resort  to  the  depots,  for 
any  purpose :  That  this  power  was  properly  to  be  executed  by  a  superintendent, 
adapting  his  rules  and  regulations  to  the  circumstances  of  the  particular  depot 
under  his  charge ;  and  that  it  was  not  necessary  that  such  regulations  should  be 
prescribed  by  by-laws  of  the  corporation  :  That  the  opening  of  depots  and  plat- 
forms for  the  sale  of  tickets,  for  the  assembling  of  persons  going  to  take  passage, 
or  landing  from  the  cars,  amounts  in  law  to  a  license  to  all  persons, />m«dy«c»c, 
to  enter  the  depot,  and  that  such  entry  is  not  a  trespass ;  but  that  it  is  a  license 
conditional,  subject  to  reasonable  and  useful  regulations ;  and,  on  non-compli- 
ance with  such  regulations,  the  license  is  revocable,  and  may  be  revoked  either 
as  to  an  individual,  or  as  to  a  class  of  individuals,  by  actual  or  constructive  no- 
tice to  that  effect :  That  if  the  platform,  as  part  of  the  depot,  is  appropriated  to 
and  connected  with  the  entrance  of  passengers  into  the  cars,  and  the  exit  of 
passengers  from  the  cars,  and  for  the  accommodation  of  their  baggage,  and  if 
the  soliciting  of  passengers  to  take  lodgings  in  particular  public-houses,  by  the 
keepers  of  them  or  their  servants,  is  a  purpose  not  directly  connected  with  the 
carriage  of  passengers  by  the  railroad,  on  their  entrance  into  or  exit  from  cars ; 
that  if,  when  urged  with  earnestness  and  importunity,  it  is  an  annoyance  of  pas- 
sengers, and  interruption  to  their  proper  business  of  taking  or  leaving  their  seats 
in  the  cars,  and  procuring  or  directing  the  disposition  of  their  baggage ;  or  if  the 
presence  of  such  persons,  for  such  a  purpose,  is  a  hindrance  and  interruption 
to  the  officers  and  servants  of  the  corporation,  in  the  performance  of  their  re- 
spective and  proper  duties  to  the  corporation,  as  passenger-carriers ;  then  the 
prohibition  of  such  persons  from  entering  upon  the  platform,  is  a  reasonable  and 
proper  regulation,  and  a  person  who,  after  actual  or  constructive  notice  of  such 
regulation,  violates  or  attempts  to  violate  it,  thereby  loses  his  license  to  enter  the 
depot ;  that  such  license  as  to  him  may  be  revoked ;  and  if,  upon  notice  to  quit 
the  depot,  he  refuses  so  to  do,  he  may  be  removed  therefrom  by  the  superintend- 
ent and  the  persons  employed  by  him ;  and  if  they  use  no  more  force  than  is 
necessary  for  that  purpose,  such  use  of  force  is  not  an  assault  and  batter^',  but 
is  justifiable :  that  as  to  the  circumstances  of  the  present  case,  if  the  superin- 


96  BY-LAWS   AND   STATUTES.  CH.  TI. 

the  company,  and  it  finally  is  shown  that  he  did  not  in  fact  violate 
any  of  such  regulations,  he  may  recover  damages  of  the  superin- 
tendent of  the  station  by  whose  order  he  was  removed,  notwith- 
standing such  superintendent  acted  in  good  faith.^  And  in  such 
case,  it  is  not  competent  to  show  that  the  plaintiff  had  been  guilty 
of  former  violations  of  other  regulations  of  the  company.^ 

6.  Under  the  English  statute  of  17  &  18  Vict.,  requiring  among 
other  things  that  the  superior  courts  of  "Westminster  Hall  shall 
enforce  the  duty  of  railway  companies  in  regard  to  their  traffic  in 
goods  and  passenger  transportation,  it  was  held  a  proper  ground 
for  granting  a  rule  to  show  cause  why  an  mjunction  should  not 
issue,  that  at  one  of  the  stations  of  the  company,  where  an  impor- 
tant junction  with  other  roads  occurred,  no  covered  place  was 
provided  for  the  accommodation  of  the  passengers.*  But  the 
English  Railway  Traffic  Act  does  not  justify  the  courts  in  requir- 
ing the  companies  to  make  the  same  charges,  or  to  afford  the  same 
facilities  in  regard  to  return  tickets  of  a  particular  class,  on  one 
of  their  branches,  which  they  do  upon  others.*  To  constitute 
inequality  of  charge,  it  must  be  for  passing  over  the  same  line,  or 
the  same  part  of  the  line.* 

tendent  had  issued  a  circular,  giving  notice  to  all  innkeepers  and  landlords  that 
he  had  prohibited  them  from  entering  the  depot  to  solicit  persons  to  go  to  their 
respective  houses  as  guests,  and  if  this  notice  came  to  Hall,  and  he  afterwards, 
and  after  special  notice  to  him  personally,  had  attempted  to  violate  this  prohibi- 
tion, and  solicit  passengers ;  and  if,  upon  the  particular  occasion,  he  gave  no 
notice  of  coming  for  any  other  purpose ;  and  if  the  defendant  Power  met  him  on 
his  way  to  the  platform,  told  him  he  must  not  go  there,  laid  his  hands  on  him, 
and  ordered  him  to  leave  the  depot,  without  any  inquiry  as  to  the  purposes  of 
Hall,  and  Hall  made  no  reply,  but  pressed  forward  and  attempted  to  reach  the 
platform,  in  spite  of  the  efforts  of  Power ;  this  was  strong  prima,  facie  evidence 
that  he  was  going  there  with  intent  to  solicit  passengers,  in  violation  of  the  no- 
tice and  revocation  of  license ;  and  that  if  he  gave  no  notice  of  his  intention  to 
enter  the  car  as  a  passenger,  and  of  his  right  to  do  so ;  and  if  Power  believed 
that  his  intention  was  to  violate  a  subsisting  reasonable  regulation ;  then  he  and 
his  assistants  were  justified  in  forcibly  removing  him  firom  the  depot :  That  if 
Hall  gave  no  notice  of  his  having  a  ticket,  of  his  intention  and  purpose  to  enter 
the  cars  as  a  passenger,  and  of  his  right  to  do  so,  and  that  Power  had  no  notice 
of  it,  then  Hall  could  not  justify  his  conduct,  and  make  Power  a  wrong-doer,  by 
proving  the  possession  of  such  a  ticket,  or  of  his  intent  to  go  in  the  cars  to  Rich- 
mond, as  a  passenger ;  and  that  he  was  to  be  considered  as  standing  on  the  same 
footing  as  if  he  had  not  possessed  such  ticket." 

♦  Caterham  Railw.  Co.  r.  London  &  Br.  Railw.  Co.,  40  Eng.  L.  &  Eq.  259. 
6.  c.  1  C.  B.  (N.  S.)  410. 
♦95 


§  27.  BY-LAWS   AS"  TO   PASSENGERS.  97 

7.  To  justify  the  courts  in  interfering  to  require  the  companies 
constituting  a  continuous  line  to  run  through  trains,  it  must  be 
shown  that  public  convenience  requires  it,  and  that  it  can  reason- 
ably be  done.*  And  they  will  not  interfere  in  such  cases  where 
there  is  another  route  where  through  tickets  may  be  obtained, 
although  somewhat  longer,  no  additional  cost  or  serious  loss  of 
time  being  thereby  incurred,  and  there  being  no  general  complaint 
of  public  inconvenience  on  that  account.* 

8.  A  railway  freight  station  or  warehouse  kept  by  a  railway 
company  for  the  storage  of  goods  transported  by  them,  is  not 
*  exempt  from  the  process  of  search  warrant  under  the  statute 
against  the  keeping  and  sale  of  spirituous  liquors ;  nor  is  it  necessary 
tliat  such  warrant  should  be  executed  during  tlie  usual  business 
hours,  or  that  the  officer  should  consult  the  person  who  has  charge 
of  the  station.* 

9.  The  Supreme  Court  of  Vermont^  decided  that  prima  facie 
railway  stations  were  open  to  all  persons,  but  the  company  may 
revoke  such  implied  license  to  all,  and  exclude  all  except  such  as 
have  legitimate  business  there  growing  out  of  the  operation  of  the 
road  or  with  the  officers  or  employees  of  the  company.  They  may 
direct  all  others  to  leave  the  station,  and,  on  refusal,  may  remove 
them.  It  is  the  duty  of  such  persons  as  desire  to  remain  in  such 
stations,  for  the  purpose  of  taking  the  cars  or  for  any  other  lawful 
purpose,  to  make  known  the  same  to  the  officers  and  employees  of 
the  company  on  request.  And  if  such  is  the  regulation  of  the 
company,  one  purposing  to  become  a  passenger  may  be  required 
to  purchase  his  ticket  in  order  to  remain  in  the  station.  This 
right  of  entering  the  station  to  take  th(J  cars  can  only  be  in  con- 
formity with  the  regulations  of  the  company,  and  within  a  reason- 
able time  only  before  the  departure  of  the  trains,  which  will  depend 
upon  the  particular  circumstances  of  each  case. 

It  is  not  requisite  the  person  should  enter  the  station  with  the 
purpose  of  taking  passage :  it  is  enough  that  he  entertains  the 
purpose  at  the  time  he  refuses  to  leave,  and  conducts  himself  in 
other  respects  in  conformity  with  the  regulations  of  the  company. 

»  Barret  r.  Great  Northern  Railw.,  1  C.  B.  (N.  S.)  423. 
*  Androscoggin  Railw.  Co.  v.  Richards,  41  Me.  233. 
'  Harris  c.  Stevens,  81  Vt.  79. 

7  *97 


98 


BT-LAW8  AND  STATUTES. 


CH.  VI. 


SECTION  III 


By  Laws  as  to  Passengers. 


1.  By4aws  as  ttatutes. 

2.  As  mere  rules,  or  regulations. 

.  8.   Requiring  larger  fares  for  shorter  distances. 

4.  Requiring  passengers  to  go  through  in  same 

train. 

5.  Arrest  of  passenger  by   company's  ser- 

vants. 

7.  Company  liable  for  act  of  servant. 

8.  By-law  must  be  published. 

9.  Excluding  merchandise  from  passenger- 

trains. 


10.  Discrimination  betuxen  fares  paid  in  cars 

and  at  stations. 

11.  Liability  for  excess  of  force. 

12.  Officer  de  facto  may   enforce  rules  of 

company. 

13.  Company  cannot  enforce  rule  against  pas- 

senger, when  in  fault  themselves.  The 
consent  of  the  company  to  tariff  of  fares 
how  presumed. 

14.  Discrimination  on  the  ground  of  color. 


§  28.  1.  A  distinction  is  sometimes  made  between  by-laws,  and 
orders,  or  regulations,  the  former  being  supposed,  in  strictness 
of  language,  to  have  reference  exclusively  to  the  government  of 
their  own  members,  and  of  their  corporate  officers.^  And  it  is 
true  that  such  other  ordinances,  as  any  owner  of  the  buildings 
and  grounds,  about  a  railway  station,  employed  in  carrying  pas- 
sengers, might  find  it  convenient  to  establish,  are  certainly  not 
what  is  ordinarily  understood  by  the  by-laws,  or  statutes,  of  the 
corporation. 

2.  But  in  the  English  cases  they  are  both  called  by-laws.^ 
*  Thus,  a  by-law,  that  each  passenger,  on  booking  his  place,  should 
be  furnished  with  a  ticket,  to  be  delivered  up  before  leaving  the 
company's  premises,  and  that  each  passenger,  not  producing  or 
delivering  up  his  ticket,  should  be  required  to  pay  fare  from  the 
place  whence  the  train  originally  started,  was  held  not  to  be  a 
by-law  imposing  a  penalty .^  And  that  therefore  the  non-produc- 
tion of  the  ticket,  with  which  a  passenger  had  been  furnished,  and 
his  refusal  to  pay  fare  from  the  place  whence  the  train  started, 

'  Shaw,  Ch.  J.,  in  Commonwealth  v.  Power,  7  Met.  601. 

»  Chilton  r.  The  London  &  Croydon  Rail.,  16  M.  &  W.  212 ;  8.  c.  5  Railw.  C. 
4.  It  would  seem  from  the  opinion  of  Parke,  B.,  that  the  by-law  was  regarded 
as  valid,  but  as  imperfect,  in  not  subjecting  the  passenger  to  a  penalty  in  terms. 
The  other  judges  doubted  whether  the  act  was  intended  to  give  the  company 
power  to  imprison  the  plaintifif,  or  any  one,  except  for  some  oflfence  against  the  act. 
But  all  seemed  to  concur  in  the  opinion  that  the  passenger  was  bound  to  comply 
with  the  regulation,  or  submit  to  the  alternative.  State  v.  Overton,  4  Zab.  435. 
*98 


§  28.  BY-LAWS  AS  TO   PASSENGERS.  99 

did  not  justify  his  arrest,  but  only  rendered  him  liable  to  pay  fare 
from  the  place  whence  the  train  started. 

3.  But  in  a  late  English  case,^  where  the  company  had  made  a 
legal  by-law,  that  any  passenger,  who  should  enter  a  carriage  of 
the  company,  without  first  having  paid  his  fare,  should  be  sub- 
jected to  a  penalty  not  exceeding  40«.,  a  passenger,  desiring  to  go 
to  Diss  station,  where  the  fare  was  7«.,  procured  a  ticket  for  Nor- 
wich, a  more  distant  station  on  the  line,  but  where  the  fare  was 
but  5«.,  in  consequence  of  competition,  and  entered  the  carriage 
accordingly,  and  at  Diss  offered  to  surrender  his  ticket,  but  re- 
fused to  pay  the  difference  in  fare ;  he  was  prosecuted  for  the  pen- 
alty, and  a  majority  of  the  Court  of  Queen's  Bench  held  he  was 
not  liable,  on  the  ground  that  he  had  paid  his  fare  before  entering 
the  carriage.  Lord  Campbell  said,  "  I  cautiously  abstain  from 
expressing  any  opinion,  as  to  the  power  of  the  company  to  make 
special  regulations,  or  by-laws,  so  as  to  enforce  larger  fares,  for 
shorter  distances."  —  "  Had  not  Frere,  within  the  meaning  of  the 
by-law,  paid  his  fare,  before  he  entered  the  carriage  ?  I  think  he 
had.  He  had  paid  the  full  fare  from  Colchester  to  Norwich,  all 
that  was  required  of  him ;  and  he  cannot  be  said  to  be  a  person 
who  had  entered  the  company's  carriage  without  payment  of 
fare."* 

*  4.  It  has  been  held  that  a  regulation  requiring  passengers  to 
go  through,  in  the  same  train,  and  that  if  one  do  not,  requiring 
fare  for  the  remainder  of  the  route  is  valid.* 

*  Reg.  0.  Frere,  4  £1.  &  Bl.  598 ;  s.  c.  29  Eng.  L.  &  £q.  143. 

*  But  the  argument  of  Lord  Campbell  on  this  point  does  not  seem  altogether 
satisfactory.  Whether  the  passenger  had  paid  his  fare  depended  upon  the 
validity  of  the  by-law,  and  could  not  be  fairly  determined  upon  any  other  basis, 
it  would  seem.  Frere  had  paid  fare  to  Norwich,  but  had  not  paid  fare  to  Diss, 
tmless  the  by-law  was  void ;  so  that  the  validity  of  the  by-law  did  seem  to  be 
necessarily  involved  in  the  decision.  And  the  decision  of  the  court,  although 
not  professing  to  do  so,  did  virtually  disregard  it.  For  if  the  by-law  was  valid, 
Frere  had  no  more  paid  his  fare  than  if  he  had  taken  a  ticket  to  a  station  short 
of  his  destination.  And  if  the  by-law  meant  any  thing  sensible,  it  could  only 
mean,  having  paid  fare  to  his  destination.  Any  other  construction  looks  like  an 
evasion. 

»  Cheney  o.  Boston  &  Maine  Railw.,  11  Met.  121 ;  8.  c.  1  Am.  Railw.  C.  601. 
In  this  case  the  passenger,  when  he  bought  his  ticket,  did  not  know  of  the  regu- 
lation, but  was  informed  of  it  in  the  cars,  and  his  money  offered  to  be  refunded, 
deducting  what  he  had  travelled ;  but  he  refused  to  make  the  arrangement,  and 
demanded  his  ticket,  in  exchange  for  the  check  which  had  been  given  him, 

•99 


100     ,^        ^  ^  ^  BY-LAWS   AND   STATUTES.  CH.  VI. 

*  And  where  the  ticket  was  marked  "  good  only  two  days  after 
date,"  it  was  held  to  be  evidence  of  a  contract  to  that  eflfect  *  be- 

marked  "good  for  this  trip  only.^'  He  stopped  by  the  way,  and  went  on  the 
same  day  in  the  next  train ;  and  when  he  presented  his  check,  it  was  refused, 
and  fare  demanded,  which  he  was  obliged  to  pay.  The  court  held  the  passenger 
could  not  recover  the  money  of  the  company,  and  that  it  made  no  difference 
whether  the  plaintiff  was  aware  of  the  regulation  or  not,  at  the  time  he  pur- 
chased his  ticket.  He  was  bound  to  inform  himself,  or  accept  of  the  ticket,  for 
what  it  entitled  him  to  demand,  by  the  rules  of  the  company. 

This  subject  is  a  good  deal  discussed  in  a  late  case  in  New  Jersey,  and  a 
similar  result  arrived  at.  It  is  there  said  that  the  company  may  discriminate 
between  way  and  through  fare,  unless  prohibited  by  law.  State  v.  Overton, 
4  Zab.  434.  In  Pier  v.  Finel,  24  Barb.  514,  where  a  person  was  put  off  the  cars 
of  a  railway  company  for  refusal  to  pay  fare,  having,  and  offering  to  the  con- 
ductor, a  ticket  of  the  company,  dated  a  few  days  before,  and  marked  "  good 
for  this  trip  only,"  but  unmutilated,  it  being  the  practice  of  the  conductors  upon 
that  road,  where  a  ticket  had  been  used,  to  give  it  a  mark ;  it  was  held  that  the 
ticket  was  prima  facie  evidence  that  the  holder  had  paid  the  regular  fare  for  it, 
and  of  his  right  to  be  transported,  at  some  time,  between  the  places  specified, 
on  some  passenger  train ;  and  if  unmutilated,  the  presumption  was,  that  it  had 
never  been  used,  and  that  it  imposed  upon  the  company  the  duty  to  so  transport 
the  holder. 

It  was  also  held  that  the  indorsement,  "  good  for  this  trip  only,"  had  reference 
to  no  particular  trip,  or  any  particular  time,  but  only  to  some  one  continuous 
trip.  That  the  passenger  might  demand  a  passage,  as  well  on  a  subsequent  day 
as  the  one  upon  which  the  ticket  bore  date,  and  was  issued. 

This  decision  seems  to  us  not  precisely  to  meet  the  whole  question  involved 
in  the  case ;  that  is,  whether  such  a  regulation,  as  was  claimed  to  be  evidenced 
by  the  ticket  and  the  indorsement,  was  a  valid  and  binding  regulation.  There 
can  be  no  doubt  such  a  regulation  exists,  upon  many  of  the  roads,  in  this  coun- 
try, and  that  such  a  ticket  is  understood,  by  the  community  generally,  as  en- 
titling the  holder  only  to  a  passage  on  that  day,  at  most,  if  not  in  the  very  next 
train. 

We  very  readily  perceive  that  the  form  of  the  ticket  is  susceptible  of  the  con- 
struction put  upon  it  by  the  court.  But  as  we  are  satisfied  that  is  not  the 
understanding  of  those  who  issue  such  tickets,  or  of  those  who  buy  them,  as  a 
general  thing,  we  should  have  been  gratified  to  see  the  main  question  grappled 
with. 

We  do  not  intend  to  intimate  any  question  of  the  general  soundness  of  the 
views  expressed  in  this  case,  upon  what  we  regard  ad  the  true  construction  of 
the  ticket.  We  are  inclined  to  think  they  are  sound.  For  it  seems  to  us  to 
be  contrary  to  the  first  principles  of  justice  and  equity,  if  the  passenger 
b,  for  sufiicient  cause,  delayed,  or  hindered  from  going,  according  to  his  ex- 
pectation, at  the  time  he  pays  his  fare,  he  should  thereby  lose  all  benefit  of 
the  payment  when  he  does  desire  to  go.  The  company  may  not  be  bound  to 
refund  the  money,  but  they  certainly  are  bound,  upon  general  principles, 
to  allow  the  holder  of  the  ticket  the  benefit  of  his  imused  portion  of  it,  deduct- 
♦  100,  101 


§  28.  BY-LAWS   AS  TO  PASSENGERS.  101 

tween  the  railway  and  the  purchaser,  and  to  be  of  no  force  after 
the  expiration  of  the  term.*    And  where  the  regulations  of  the 

ing,  of  course,  any  loss,  or  inconvenience  to  them,  by  reason  of  the  contract  not 
being  carried  into  effect,  according  to  its  terms,  And  any  regulation  of  the 
company,  which  should  deprive  the  passenger  of  this  benefit,  would  operate  s 
forfeiture,  which  no  court  of  justice  will  favor,  where  the  passenger  is  not  in 
fault.  It  seems,  in  principle,  to  be  controlled  by  the  rule  of  law  applied  to  work 
done  upon  the  company^s  road,  but  not  according  to  the  contract,  and  which, 
nevertheless,  the  company  are  benefited  by,  to  a  certain  extent.  In  such  cases 
the  company  must  pay  for  the  work,  at  its  value  to  them,  that  is,  deducting  all 
losses,  in  consequence  of  its  not  being  done  as  stipulated.     Post,  §  113,  pi.  4. 

So,  also,  if  the  passenger  refuse  to  surrender  his  ticket  in  exchange  for  the 
conductor's  check,  according  to  the  regulations  of  the  company,  and  at  any 
point  of  the  route  leave  the  cars,  without  surrendering  his  ticket,  he  is  liable 
to  pay  fare  for  the  distance  he  rode,  or  upon  his  refusal  to  surrender  his  ticket, 
or  to  pay  fare,  the  conductor  is  justified  in  expelling  him  from  the  cars.  Northern 
Railway  v.  Page,  22  Barb.  130.  But  passengers  are  not  obliged  to  surrender 
their  tickets  without  having  a  check  in  exchange  by  which  they  may  be  able  to 
show  that  they  have  paid  fare.  State  e.  Thompson,  20  N.  H.  250.  In  Hibbard 
V.  New  York  &  Erie  Railway,  1  Smith,  465,  New  York  Court  of  Appeals,  it 
was  held,  that  a  regulation,  made  by  a  railway  company,  requiring  passengers  to 
exhibit  their  tickets  whenever  requested  by  the  conductor,  and  directing  those 
who  refused  to  do  so  to  be  expelled  from  the  cars,  was  reasonable  and  valid,  and 
that  passengers  were  bound  to  conform  to  it,  and  forfeited  all  right  to  be  carried 
further  by  refusal  to  do  so.  And  it  was  further  held,  that  the  binding  force  of 
such  a  regulation  was  matter  of  law  to  be  decided  by  the  court,  and  that  under 
such  a  regulation,  where  a  passenger  refused,  on  request,  to  exhibit  his  ticket,  a 
second  time,  the  train  having  in  the  mean  time  passed  a  station,  it  was  error  in 
the  court  to  charge  the  jury,  that  the  passenger  was  bound  to  exhibit  his  ticket, 
when  reasonably  requested,  and  that  if  the  conductor  knew  he  had  paid  his  fare 
he  had  no  right  to  expel  him  from  the  cars. 

It  is  intimated  in  this  case,  that  one  who  has  thus  forfeited  his  right,  cannot 
regain  it  by  exhibiting  his  ticket  after  the  train  is  stopped  for  the  purpose  of 
putting  him  off.  And  also,  that  the  company  would  not  be  liable  if  the  conductor 
put  a  wrong  construction  upon  the  regulation,  and  thus  wrongfully  expelled  a 
passenger,  or  if  he  were  guilty  of  an  excess  of  force. 

And  where  a  person  purchases  a  railway  ticket  and  starts  upon  the  road,  and 
afterwards  gives  up  his  ticket  to  the  conductor,  he  cannot,  at  an  intennediate 
station,  by  virtue  of  the  subsisting  contract,  leave  his  seat  in  that  train,  and 
subsequently  claim  a  seat  in  another  train.  Cleveland,  &c.  Railw.  v.  Bartram, 
11  Ohio,  N.  S.  467. 

•  Boston  &  Lowell  Railway  Co,  r.  Proctor,  1  Allen,  267 ;  Shedd  ».  Troy  & 
Boston  Railw.,  40  Vt.  88.  And  the  same  doctrine  is  maintained  in  Johnson  v. 
Concord  Railw.,  46  N.  H.  213,  And  it  was  here  held  that  ignorance  of  the  by- 
laws or  regulations  of  the  company  will  make  no  difference.  Passengers  must 
inquire  if  they  desire  to  leam  the  regulations  of  the  company.     And  the  con- 


102  BY-LAWS  AND   STATUTES.  CH.  VI. 

company  allow  the  conductors,  by  making  a  memorandum  on  a 
ticket,  to  permit  the  passenger  to  stay  over  and  pass  upon  another 
train,  and  one  stayed  over  without  procuring  such  memorandum, 
it  was  held  that  another  conductor,  to  whom  he  presented  his 
ticket  in  attempting  to  pass  at  a  subsequent  time,  was  justified  in 
demanding  fare,  and  putting  the  passenger  off  the  train  upon  his 
refusal  to  pay.^ 

5.  In  one  case,^  where  the  plaintiff,  upon  the  information  of  the 
station-clerk  that  he  might  return  at  a  given  hour  upon  an  ex- 
cursion ticket,  purchased  such  ticket  and  took  the  train  named 
by  such  clerk  to  return,  but  the  train  did  not  pass  through  ;  and 
at  the  place  where  it  stopped  the  station-clerk  demanded  28.  6d. 
more,  saying  he  should  not  have  taken  that  train,  payment  being 
refused,  the  superintendent  took  the  plaintiff  into  custody :  The 
plaintiff's  attorney  having  written  the  secretary  of  the  company, 
asking  compensation,  he  requested  to  be  furnished  with  the  date 
of  the  transaction,  and  promised  to  make  inquiries.  He  also 
stated  verbally  that  it  was  an  awkward  business,  and  the  blame 
would  fall  upon  the  station-clerk  who  gave  the  plaintiff  the  false 
information,  and  offered  to  return  the  2s.  6d.  It  was  held  that, 
as  there  was  no  evidence  of  the  authority  of  the  defendants  to 
make  the  arrest,  and  none  of  their  having  expressly  or  impliedly 
authorized  or  ratified  it,  it  must  be  regarded  as  the  mere  tortious 
act  of  the  servant,  for  which  he  alone  was  responsible. 

*  6.  But  in  a  somewhat  similar  case,^  in  the  Exchequer  Chamber, 

ductors  having  waived  them  is  no  evidence  of  their  repeal  unless  known  to  the 
governing  officers  of  the  company. 
'  Beebe  v.  Ayres,  28  Barb.  275. 

*  Roe  V.  Birkenhead,  Lancashire,  and  Cheshire  Junction  Railw. ,  7  Exch.  36 ; 
7  Eng.  L,  &  Eq.  546  ;  s.  c.  6  Railw.  C.  795.  And  it  has  been  held  that  a  steam- 
boat proprietor  might  exclude  one  from  his  boat,  while  employed  in  carrying  pas- 
sengers, if  such  person  was  the  agent  of  a  rival  line  of  stages  to  that  which,  by 
contract  with  the  proprietor,  carried  in  connection  with  his  boats,  the  plaintiff's 
object  being,  at  the  time,  to  solicit  passengers  to  go  by  the  rival  line  of  stages ; 
and  the  jury  having  found  that  the  contract  was  bond  fide  and  reasonable,  and  not 
entered  into  for  the  purpose  of  an  oppressive  monopoly,  and  that  the  regulation 
excluding  plaintiff  was  necessary  in  order  to  carry  the  contract  into  effect. 
Jencks  v.  Coleman,  2  Sumner,  221.  But  a  contract  not  to  carry  passengers 
coming  by  a  particular  line  will  not  excuse  the  carrier  from  carrying  such  pas- 
senger.    Bennet  v.  Dutton,  10  N.  H.  481. 

»  The  Eastern  Counties  Railway  v.  Broom,  6  Exch.  314 ;  2  Eng.  L.  &  Eq. 
406 ;  8.  c.  6  Railw.  C.  743. 
•  102 


§  28.  BT-LAWS   AS  TO   PASSENGERS.  103 

where  the  plaintiff  below  had  been  taken  into  custody  by  a  railway 
inspector  of  the  defendants,  charged  with  having  no  ticket,  refus- 
ing to  pay  fare,  intoxication,  and  assaulting  the  inspector ;  at  the 
hearing  before  the  magistrate,  the  solicitor  of  the  company  attend- 
ed to  conduct  the  proceedings  ;  and  it  was  held  that  such  attend- 
ance was  no  ratification  by  the  company,  it  not  appearing  that  the 
facts  were  known  to  the  company.  These  cases  afford  more  lati- 
tude for  corporations  to  escape  from  liability  for  the  acts  of  their 
agents  and  servants,  while  employed  in  the  prosecution  of  their 
business,  than  is  commonly  allowed  in  this  country.^** 

7.  But  there  are  many  cases  in  this  country  where  it  has  been 
held  that  trespass  will  not  lie  against  a  corporation  for  the  act  of 
their  agents ;  "  but  this  is  not  the  prevailing  rule  here,  where  the 
servant  acts  within  the  apparent  scope  of  his  authority,  and  where 
his  acts  would  bind  the  principal,  being  a  natural  person. 

8.  An  English  railway  company'^  having  power  by  statute  to 
make  by-laws  which  were  to  be  painted  upon  a  board  and  hung 
up  at  the  stations,  and  to  be  binding  upon  all  parties,  made, 
among  others,  a  by-law  that  "  first-class  passengers  shall  be  al- 
lowed one  hundred  and  twelve  pounds,  and  second-class  passengers 
fifty-six  pounds  luggage  each,  and  that  the  company  will  not  be 
responsible  for  the  care  of  the  same  unless  booked  and  paid  for 
accordingly."  It  did  not  appear  that  the  plaintiff  knew  of  the  by- 
law, or  that  it  had  been  posted  up  as  required.  The  plaintiflf 
became  a  passenger,  and  gave  his  luggage  to  the  *  servants  of  the 
company,  and  it  had  been  stolen.  It  was  held  that  the  company 
were  liable,  unless  they  showed  the  by-law  hung  up  at  the  star 
tions,  as  required  by  the  statute,  or  else  brought  it  home  to  the 
knowledge  of  the  plaintiff. 

9.  A  by-law  excluding  merchandise  from  the  passenger-trains, 
and  confinuig  its  transportation  to   the   freight-trains,  was  held 

"  Post,  §  225  and  notes.  See,  also,  post,  §§  176,  183.  And  in  Coppin  v. 
Braithwaite,  8  Jurist,  875,  it  is  said  to  have  been  ruled  by  Bolfe,  B.,  at  Nisi 
Prius,  that  a  Carrier  having  received  a  pickpocket  as  a  passenger  on  board  his 
vessel,  and  taken  his  fare,  he  cannpt  put  him  on  shore  at  any  intermediate  place, 
so  long  as  he  is  guilty  of  no  impropriety. 

"  Philadelphia  G.  &  N.  Railw.  Co.  r.  Wilt,  4  Wharton,  143 ;  8.  c.  2  Am. 
Railw.  C.  254 ;  Orr  ».  Bank  of  U.  Sutes,  1  Ohio,  36 ;  Foote  r.  City  of  Cincin- 
nati, 9  Ohio,  81.  Per  Comatock  and  Broum,  JJ,,  in  Hibbard  ».  N.  Y.  &  Erie 
RaUw.  Co.,  15  N.  Y.  455. 

"  Great  Western  R.  c.  Goodman,  11  Eng.  L.  &  Eq.  646. 

•  108 


104  BY-LAWS  AND  STATUTES.  CH.  VI. 

reasonable.  The  company  are  not  bound  to  carry  a  passenger 
daily  upon  his  paying  fare,  when  his  trunk  or  trunks,  contain  mer- 
chandise, money,  and  other  valuable  matter  known  as  "  express 
matter."  is 

10.  In  a  very  recent  case  ^*  in  Connecticut,  it  was  held  by  a 
divided  court,  that  where  a  railway  company  established  and  gave 
notice  of  a  discrimination  of  five  cents  between  fares  paid  in  the 
cars  and  at  the  stations,  the  regulation  was  valid,  and  that  where  a 
passenger  refused  to  pay  the  additional  five  cents  in  the  cars,  the 
conductor  might  lawfully  put  him  out  of  the  cars,  using  no  unnec- 
essary force.  Upon  the  trial  of  an  action  for  such  expulsion,  it 
was  held,  that  the  plaintiff  was  not  entitled  to  recover  upon  proof, 
that  he  went  to  the  ticket-oflSce  of  the  company  a  reasonable  time 
before  the  train  left,  to  procure  a  ticket ;  that  the  oflBce  was  closed, 
and  so  remained  till  the  train  departed,  and  that  he  so  informed 
the  conductor,  before  his  expulsion  from  the  cars. 

*  The  following  propositions  are  maintained  in  the  opinion  of  the 
court :  — 

1.  That  the  defendants,  as  common  carriers,  were  under  no 
legal  obligation  to  furnish  tickets,  or  to  carry  passengers  for  less 
than  the  sum  demanded,  if  the  fare  was  paid  in  the  cars. 

"  Merrihew  v.  Milwaukie  &  Mississippi  R.  5  Law  Reg.  364. 

"  Crocker  r.  New  London,  Wlllimantic  &  Palmer  Railw.,  24  Conn.  249. 
The  court  were  so  nearly  equally  divided  in  the  decision  of  this  case,  that  it  can- 
not be  regarded  as  much  authority,  in  itself.  The  leading  propositions  in  the 
text  were  maintained,  by  the  Chief  Justice  and  one  other  judge,  and  dissented 
fi^m  by  two  other  judges. 

The  only  point  of  doubt  seems  to  be  the  duty  of  the  company,  in  making  such 
discrimination,  to  give  reasonable  opportunity  to  passengers  to  obtain  tickets,  at 
the  lowest  rate  of  fare,  which  seems  just  and  reasonable,  and  in  accordance,  we 
believe,  with  the  generally  received  opinion  upon  the  subject,  and  the  one  we 
should  have  been  inclined  to  adopt.  In  Hilliard  r.  Goold,  34  N.  H,  230,  it 
was  held,  that  a  uniform  discrimination  between  fares  paid  in  the  cars,  and  at 
the  stations,  not  exceeding  five  cents,  was  reasonable  and  legal,  and  a  passenger 
who  had  not  procured  a  ticket,  and  refused  to  pay  the  additional  five  cents  de- 
manded of  him,  for  fare  paid  in  the  cars,  was  liable  to  be  expelled.  Chicago, 
Burlington,  &  Quincy  Railw.  v.  Parks,  18  Illinois,  460.  And  it  is  here  held  that 
where  the  passenger  only  pays  from  station  to  station,  the  additional  five  cents 
may  be  required  at  each  payment. 

The  general  proposition  of  the  reasonableness  of  a  discrimination  between 
fares  paid  in  the  cars,  and  at  the  stations,  is  maintained  in  State  r.  Goold,  53 
Me.  279.  And  the  passenger  is  bound  by  such  by-law,  whether  he  knew  of  it 
or  not,  ib. 

•104 


§  28.  BY-LAWS  AS  TO   PASSENGERS.  105 

2.  That  the  plaintiffs  claim  rested  solely  upon  the  assumption, 
that  the  defendants  had  undertaken  to  carry  for  the  less  sum,  on 
certain  conditions,  wliich  they  had  themselves  defeated. 

3.  That  the  regulation  did  not  constitute  a  contract,  but  a  mere 
proposal,  which  they  might  suspend,  or  withdraw  at  any  time. 

4.  That  such  proposal  was  withdrawn  by  closing  the  defendants* 
oflSce,  and  the  retirement  of  their  agent  therefrom. 

6.  The  proposition  being  withdrawn,  the  parties  were  in  the 
same  condition  as  before  it  was  made ;  the  defendants  continuing 
common  carriers  were  bound  to  carry  the  plaintiflf  for  the  usual 
fare  paid  in  the  cars  and  not  otherwise. 

6.  That  the  plaintiflf,  refusing  to  pay  such  fare,  was  properly 
removed  from  the  cars. 

It  was  further  held  by  all  the  judges  that  if  the  plaintiff  was 
wrongfully  removed  from  tlie  cars,  he  might  lawfully  re-enter  them, 
and  if  in  attempting  to  do  so  he  received  the  injury  complained  of, 
he  was  entitled  to  recover,  unless  he  was  himself  guilty  of  some 
want  of  care,  which  produced,  or  essentially  contributed  to  produce, 
the  injury. 

But  if  the  expulsion  was  lawful,  or  if  the  plaintiflf  was  guilty  of 
want  of  care,  as  stated,  he  could  not  recover. 

The  majority  of  the  court  also  held,  that  if  any  of  the  defendants' 
employees,  which  the  conductor  called  to  his  aid,  in  putting  and 
keeping  the  plaintiflf  oflf  the  cars,  intentionally  kicked  the  plaintiflf 
in  his  face,  without  the  knowledge  or  direction  of  the  conductor, 
the  defendants  are  not  liable  for  the  act,  in  trespass.  But  the  more 
reasonable  view  in  regard  to  the  mode  of  enforcing  a  discrimination 
between  fares  paid  in  the  cars  and  at  the  stations  is,  that  such  a 
regulation,  however  proper  in  itself,  cannot  legally  be  enforced  by 
the  company  unless  they  have  aflforded  every  proper  and  reasona- 
ble facility  to  the  passenger  for  procuring  his  ticket  at  the  sta- 
tion.^* 

'»  St,  Louis  &  C.  Railw.  v.  Dalby,  19  111.  353 ;  Chicago,  B.  &  O.  Railw.  r. 
Parks,  18  111.  460.  And  in  a  late  case,  St.  Louis,  Alton,  &  Terrchautc  Railroad 
V.  South,  43  III.,  not  yet  published,  it  was  decided  that  the  foregoing  cases  are  not 
to  be  construed,  as  requiring  railway  companies  to  keep  open  their  ticket  offices, 
for  the  sale  of  tickets  to  passengers  beyond  the  time  fixed  by  their  established  time- 
tables for  the  departure  of  a  train ;  but  such  companies  are  required  to  keep  open 
their  offices  for  the  sale  of  such  tickets  as  passengers  are  required  by  them  to  pro- 
cure, for  a  reasonable  time  before  the  time  so  fixed  for  the  departure  of  such  train, 
and  not  up  to  the  time  of  its  actual  departure.     They  are  required  to  furnish  a 


106  BY-LAWS   AND   STATUTES.  CH.  VI. 

*  11.  There  is  no  question,  upon  general  principles,  in  an  action, 
or  indictment,  against  the  conductor  of  a  railway  train,  for  unlaw- 
fully expelling  a  passenger,  where  the  evidence  shows  a  right  to  make 
the  expulsion,  that  the  conductor  may  nevertheless  become  liable 
for  the  manner  of  doing  it.  This  is  a  question  to  be  determined 
by  the  jury,  and  cannot  ordinarily  be  decided  by  the  court,  as  mat- 
ter of  law.  If  there  be  an  excess  of  force,  or  it  be  applied  in  an 
unreasonable  and  improper  manner,  the  conductor  is  liable  for  such 
excess,  to  respond  in  damages  to  the  party,  and  also  to  public  pros- 
ecution, for  a  breach  of  the  peace. ^^ 

12.  The  autliority  of  the  conductor  of  a  railway  train,  or  of  any 
other  servant  of  the  company,  to  enforce  their  regulations,  does 
not  depend  upon  the  formal  mode  of  his  appointment,  but  upon  the 
fact  of  his  being  employed  at  the  time  in  the  particular  office.^^ 

13.  In  a  late  English  case,i'^  where  the  railway  company  had 
established  a  by-law  requiring  all  passengers  to  purchase  tickets 
before  entering  the  cars,  and  to  show  the  tickets  when  required  so 
to  do,  and  to  deliver  them  up  on  request,  before  leaving  the  com- 
pany's premises,  and  the  plaintiff  took  tickets  for  himself  and  three 
boys  and  three  horses,  by  a  certain  train,  which  was  afterwards 
divided  by  the  company's  servants  into  two  parts,  one  being  com- 
posed of  passenger  carriages,  and  the  other  of  horse  boxes ;  and 
the  plaintiff  retained  all  the  tickets  and  travelled  by  the  first-men- 
tioned portion  of  the  train,  so  that  the  boys,  who  were  left  to  go  in 
the  other  portion  of  the  train,  were  unable  to  produce  their  tickets 
when  requested,  and  were  accordingly  excluded  by  the  company's 
servants  from  entering  the  horse  boxes ;  it  was  held  a  breach  of 
contract  by  the  company,  for  which  they  were  responsible.     A 

convenient  and  accessible  place  for  the  sale  of  passenger  tickets,  and  afford  the 
public  a  reasonable  opportunity  to  purchase  them,  and  parties  who  do  not  avail 
themselves  of  the  opportunity  must  submit  to  pay  the  extra  fare  required  by  the 
general  regulations  of  the  company,  or  on  refusal,  to  be  expelled  from  the  cars. 

It  was  also  held  in  this  case,  that  the  right  of  railway  companies  to  discrimi- 
nate between  fares  paid  in  the  cars,  and  at  the  stations,  was  dependent  upon  the 
fact  that  a  reasonable  opportunity  had  been  afforded  for  procuring  tickets  at  the 
lower  rate.  These  doctrines  seem  to  us  reasonable  and  just,  and  we  should  be 
surprised  to  have  them  fail  of  general  acceptance  by  the  courts. 

«•  Hilliard  v.  Goold,  34  New  H.  230.  State  v.  Ross,  2  Dutcher,  224.  In 
this  last  case  the  principal  evidence  of  excess  was,  that  the  conductor  kicked  a 
passenger  who,  in  a  state  of  intoxication,  persisted  in  attempting  to  get  upon  the 
train,  and  the  court  held  the  conviction  proper. 

"  Jennings  v.  Great  Western  Railw.,  Co.  12  Jur.  N.  S.  831. 
*106 


§  28.  BY-LAWS  AS  TO   PASSENGERS.  107 

tariflf  of  fares  or  freight  must  have  the  sanction  of  the  corpora- 
tion to  become  of  binding  obligation.  But  if  established  by  the 
president  and  the  business  of  the  company  transacted  with  refer- 
ence to  them,  without  objection,  the  consent  of  the  company  will 
be  presumed.  ^^ 

14.  There  has  been  considerable  controversy  in  the  country,  how 
far  railway  companies  have  the  legal  right  to  require  colored  pas- 
sengers to  sit  in  a  particular  car,  or  portions  of  the  car.  That  right 
was  maintained  by  the  Supreme  Court  of  Pennsylvania.^  But  it 
has  been  denied  in  other  courts.  The  recent  amendments  of  the 
United  States  constitution,  have  been  supposed  by  some  to  settle 
this  question.  There  seems  to  be  no  sufficient  reason  why  any 
such  discrimination  should  now  be  made,  and  when  the  unfortu- 
nate animosities  growing  out  of  the  former  existence  of  slavery  in 
the  country  shall  have  effectually  subsided,  it  is  to  be  hoped  that 
any  such  questions  will  cease  to  be  raised.  Persons  of  the  highest 
culture  and  refinement,  as  a  general  thing,  feel  less  sensitive  on 
this  subject  than  others,  and  their  example  will  constantly  tend  to 
lead  others  in  the  right  path. 

'«  Westchester  Railw.  v.  Miles,  65  Penn.  St.  209. 


108  CAPITAL  STOCK  —  LIMITATIONS.  CH.  VIL 


♦CHAPTER  VII. 

CAPITAL   STOCK. 
/  SECTION  I. 

Limitations. 

1.  General  rights  of  shareholders.  I   3.    Cannot  mortgage,  unless  on  gpecial  license 

2.  Capital  stock  not  the  limit  of  property.         \  of  the  legislature. 

§  29.  1.  All  joint-stock  companies  are  allowed  to  raise  a  certain 
amount,  and  sometimes  an  indefinite  amount,  of  capital,  by  the 
subscription  of  the  members ;  the  corporation  in  fact,  generally 
consisting  of  the  contributors  of  stock  and  their  assignees,  which 
is  divided  into  shares,  transferable  according  to  the  by-laws 
and  charter  of  the  corporation,  entitling  the  owner  for  the  time 
being,  to  the  rights  of  voting,  either  in  person  or  by  proxy,  as  a 
general  thing,  and  to  a  participation  in  the  profits  of  the  enter- 
prise.^ 

2.  The  capital  stock  of  a  corporation  is  not  necessarily  the  limit 
of  its  property .2  It  is  not  uncommon  for  charters  of  stock  com- 
panies to  contain  restrictions  and  limitations  in  regard  to  their 
right  or  capacity  to  hold  real  estate,  and  sometimes  even  in  regard 
to  personal  estate. 

3.  But  railway  companies,  being  created  for  the  purpose  of  car- 
rying into  effect  a  definite  enterprise,  must  almost  of  necessity 
have  the  power  to  issue  suflficient  stock  to  accomplish  the  under- 
taking, or  to  raise  the  requisite  funds  in  some  other  mode,  as  by 
loan  and  mortgage.  And  where  the  stock  is  limited,  and  often 
where  it  is  not,  these  corporations  have  been  compelled,  either  to 
abandon  the  enterprise,  or  to  resort  to  loans  and  mortgages,  which 
being  in  some  sense  a  desperate  mode  of  raising  funds,  as  long  as 
the  company  have  power  to  issue  stock,  could  only  be  *  justified, 

'  Walford  on  Railways,  252 ;  Penobscot  Railw.  v.  White,  41  Me.  512. 
*  Barry  v.  Merchants'  Exchange  Co.,  1  Sandford's   Ch.  280;    South  Bay 
Meadow-Dam  Co.  r.  Gray,  30  Me.  647. 
•  106,  107 


§  30.     CONDITIONS   WHICH   PUBLIC   AUTHORITIES  MAY  ENFORCE.      109 

ordinarily,  by  a  strict  and  fatal  necessity,  and  by  permission  of  the 
legislature,  as  is  generally  considered.* 


SECTION    II. 
Conditions  precedent^  which  the  Public  Authorities  may  enforce. 

1.   Stock,  if  limited,  must  all  be  tubtcribed.      \   2.   Payments  at  time  of  subscription. 

§  30.  1.  If,  by  the  charter,  the  stock  of  the  company  is  divided 
into  a  certain  number  of  shares,  that  number  cannot  be  changed 
by  act  of  the  company .^  And  if  the  charter  either  expressly  or  by 
legal  intendment  require,  that  a  certain  number  of  shares  be  sub- 
scribed before  any  assessment  is  laid,  no  valid  assessment  can  be 
be  laid  until  that  number  be  bo7id  fide  subscribed,  and  if  it  is  at- 
tempted the  company  may  be  dissolved.^ 

2.  And  where  the  general  law  of  the  state,  or  the  particular 
charter,  requires  a  given  proportion  of  subscriptions  to  be  paid  in 
at  the  time  of  subscription,  this  condition  must  be  complied  with, 
or  the  subscriptions  will  not  fulfil  the  condition  precedent.^   *  Where 

»  Post,  §§  197,  234,  285. 

>  Salem  MiU-Dam  Co.  r.  Ropes,  6  Pick.  28. 

*  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23 ;  Central  Turnpike  Co.  v.  Valen- 
tine, 10  Pick.  142.  Where  the  capital  stock  consists  of  a  given  number  of 
shares  of  given  amount,  no  valid  assessment  for  the  general  purposes  of  the  en- 
terprise can  be  made  until  the  whole  number  of  shares  is  subscribed ;  and  if  any 
of  the  subscriptions  be  made  upon  conditions  precedent,  it  must  be  shown  that 
such  conditions  have  been  waived  or  performed.  10  Pick.  142.  But  assess- 
ments to  defray  the  expenses  of  the  incorporation,  organization,  and  preliminary 
examination,  similar  to  those  under  the  provisional  companies  in  England,  have 
been  allowed  to  be  made  before  the  stock  of  the  company  is  all  subscribed.  6 
Pick.  28.  And  in  a  suit  upon  subscriptions  to  stock  in  a  corporation,  where  by 
the  charter  a  given  amount  of  stock  is  required  to  be  subscribed  before  the  cor- 
poration can  go  into  operation,  it  is  necessary  to  allege  the  latter  fact,  and  the 
omission  will  be  ground  of  error,  although  the  question  is  not  raised  at  the  trial. 
Fry's  ExV  v.  Lex.  &  Big  S.  Railw.,  2  Met.  (Ky.)  314.  ^ 

•  Highland  Turnpike  Co.  r.  M'Kean,  11  Johns.  98,  1  Caines's  Cas.  86. 
Bat  see  post,  §  51,  where  it  vrill  appear,  that  although  the  public,  or  the  other 
shareholders,  may  insist  upon  the  payment,  in  money,  of  the  sums  required  by 
the  charter  to  be  paid  at  the  time  of  subscription,  this  is  a  condition  which  can- 
not be  taken  advantage  of  by  the  subscriber,  as  between  himself  and  the  com- 
pany, in  an  action  for  calls.   And  it  has  been  held,  that  the  stock  subscriptions  to 

•  108 


110 


CAPITAL  STOCK. 


CH.  VII. 


the  charter  of  a  railway  company  provided  that  the  whole  capital 
stock  should  be  subscribed,  before  any  of  the  powers  and  pro- 
visions of  the  charter  should  be  put  in  force,  and  the  company 
made  a  call  upon  the  shares  before  the  subscriptions  were  com- 
pleted, and  commenced  an  action  after  they  were  so,  it  was  held 
the  action  could  not  be  maintained,  the  completion  of  the  sub- 
scription being  necessary  to  enable  the  company  to  make  the 
call.4 

SECTION  III. 

Shares  Personal  Estate, 


1.  Railvoay  shares  personal  estate  at  common 

law. 

2.  Not  an  interest  growing  out  of  land,  or 

goods,  wares,  and  merchandise. 


3.  Early  cases  treated  such  shares  as  real 
estate. 


§  31.  1.  The  shares  of  railway  companies  are  now  almost  uni- 
versally regarded  as  personal  estate.  The  English  statute  so  de- 
clares them.  Hence  the  transfer  of  such  shares  is  not  required  to 
be  in  writing,  nor  are  they  regarded  as  coming  within  the  acts  of 

a  railway,  with  banking  privileges,  cannot  be  paid  in  bills  of  the  company,  but 
must  all  be  paid  in  specie.  King  v.  Elliott,  5  Sm.  &  M.  428.  The  charter  in 
this  case  required  $20  paid  in  specie  at  the  time  of  subscription.  Subscriptions 
in  the  name  of  infants,  unless  some  one  is  responsible  for  payment  of  calls,  are 
not  a  compliance  with  the  charter.  Roman  r.  Fry,  5  J.  J.  Marshall,  634.  But 
if  the  corporation  acquiesce  in  such  subscriptions,  they  cannot  afterwards  object. 
Creed  v.  Lancaster  Bank,  1  Ohio  N.  S.  1.  See  Beach  v.  Smith,  28  Barb.  254. 
See,  also.  East  Pascagoula  Hotel  Cq.  v.  West,  13  La.  Ann.  545 ;  Piscata- 
qua  Ferry  Co.  v.  Jones,  39  N.  H.  491 ;  Fiser  v.  Miss.  &  Tenn.  Railw.  32  Miss. 
359  ;  Hayne  v.  Beauchamp,  5  Sm.  &  Mar.  515,  537  ;  Lewis  v.  Robertson,  13  id. 
658;  Barrington  v.  Miss.  Central  Railw.,  32  Miss.  763;  Miss.  &  Tenn.  Railw. 
V.  Harris,  36  Miss.  17. 

But  it  has  been  held  that  a  condition  in  the  charter,  that  one  dollar  per  share 
shall  be  paid  at  the  time  of  subscription,  and  the  company  organized  when  one  thou- 
sand shares  are  subscribed,  does  not  apply  to  subscriptions  made  after  the 
organization  of  the  company,  nor  will  the  failure  of  the  company  to  build  its 
road  within  the  time  limited  in  the  charter  enable  the  subscribers  to  defend 
against  calls.     Taggart  v.  West  Maryland  Railw.,  24  Md.  568. 

*  Norwich  and  Lowestoft  Navigation  Co.  v.  Theobald,  1  M.  &  M.  151.  It  is 
not  competent  for  all  the  shareholders  to  reduce  the  amount  of  the  capital  stock, 
by  mutual  consent,  below  that  fixed  in  the  charter.  If  that  is  attempted,  it  will 
be  enjoined  upon  a  bill  brought  by  the  company  against  'the  shareholders  and 
projectors.     Society  of  Practical  Knowledge  v.  Abbott,  2  Beavan,  659. 


§  31.  SHARES   PERSONAL   ESTATE.  Ill 

mortmain.*  This  has  been  repeatedly  decided  in  regard  *  to  shares 
of  canal  and  dock  companies,  and  bonds  secured  by  an  assign- 
ment of  the  rates.*  Such  shares  may  be  sold  by  parol  where 
the  contract  is  executory .^  And  it  would  seem  that  the  same 
view  would  prevail  in  the  English  courts,  even  where  there  is  no 
statutory  declaration  that  the  shares  shall  be  deemed  personal 
estate.^ 

2.  And  the  sale  of  foreign  railway  shares  standing  in  the  name 
of  another  person,  and  a  guarantee  that  such  person  shall  deliver, 
need  not  be  in  writing,  either  as  having  respect  to  an  interest 
growing  out  of  land,  or  as  an  undertaking  for  another,  the  under- 
taking being  original  and  not  collateral.^  Railway  shares  are 
neither  an  interest  in  land,  nor  goods,  wares,  and  merchandise, 
within  the  statute  of  frauds.* 

3.  Some  of  the  early  English  cases  treated  the  shares  of  incor- 
porated companies  as  real  estate,  where  the  interest  grew  out  of 
the  Use  or  improvement  of  real  estate,®  and  a  similar  view  is  taken 
in  some  of  the  American  states.'  But  the  settled  rule  upon  the 
subject  now,  both  in  England  and  in  this  country,  is  that  before 
stated.^    This  has  often  been  decided  in  recent  analogous  *  cases. 

*  Aahton  r.  Lord  Longdale,  4  Eng.  L.  &  £q.  80.  This  case  extends  the 
same  rule  to  the  debentures  of  such  companies.  Neither  is  railway  scrip  with- 
in the  Mortmain  Act.  But  mortgages  given  by  a  railway  company  of  the  un- 
dertaking and  tollfl  may  be  within  the  act.  So  also  shares  in  a  bank  secured  by 
mortgages.  Myers  r.  Ferigal,  16  Simons,  533 ;  The  King  v.  Chipping  Norton, 
5  East,  239. 

'  Sparling  r.  Parker,  9  Beavan,  450 ;  Thompson  v.  Thompson,  1  Coil.  C.  C. 
381;  Hilton  p.  Giraud,  1  De  G.  &  S.  18?;  Walker  v.  Mihie,  11  Beavan,  507. 
But  see  Tomlinson  r.  Tomlinson,  9  id.  459. 

»  Bradley  v.  Holdsworth,  3  M.  &  W.  422 ;  Bligh  p.  Brent,  2  Y.  «&  Coll.  268, 
294.  This  is  an  elaborate  case  establishing  the  'proposition  that  the  shares  in  a 
corporation,  whose  works  are  real  estate,  are  nevertheless  personal  estate,  and 
this  upon  general  principles  of  the  common  law. 

*  Hargreaves  p.  Parsons,  13  M.  &  W.  561. 

»  Humble  p.  MitcheU,  2  Railw.  C.  70;  8.  c.  11  Ad.  &  Ellis,  206.  See  also 
Duncuft  p.  Albrecht,  12  Simons,  189 ;  Tempest  p.  Kilner,  3  C.  B.  249 ;  Knight 
V.  Barber,  16  M.  &  W.  66. 

*  Drj'butter  p.  Bartholomew,  2  Peere  Wms.  127 ;  Townsend  p.  Ash,  3  Atk. 
336 ;  Buckerridge  p.  Ingram,  2  Vesey,  jr.  652. 

'  Welles  p.  Cowles,  2  Conn.  567.  See  also  Cape  Sable  Company's  case,  3 
Bland's  Ch.  606,  670 ;  Binney's  case,  2  id.  99 ;  Price  p.  Price,  6  Dana,  107 ; 
Meason's  Estate,  4  Watts,  341. 

"  Walford,  254;  ante,  §  31,  and  cases  cited  in  notes  1,  2,  3,  and  4;  Tippets 

•  109,  110 


112  CAPITAL  STOCK.  CH.   VII. 

The  fee  of  land  being  in  the  corporation,  vests  no  interest  of  the 
nature  of  real  estate  in  the  separate  shareholders.^ 

».  Walker,  4  Mass.  695,  596,  opinion  of  Parsons,  Ch.  J.  Speaking  of  a  turn- 
pike company,  he  says :  "  When  the  road  is  made,  the  corporation  is  entitled  to 
demand  and  receive  a  toll  of  travellers  for  the  use  of  it,  in  trust  for  the  members 
of  the  corporation,  in  proportion  to  their  respective  shares.  The  property  of 
ever}'  member  is  the  right  to  receive  a  proportional  part  of  the  tolls,  which  is 
considered  as  personal  estate." 

In  Howe  v.  Starkweather,  17  Mass.  240,  243,  Parker,  Ch.  J.  says :  "  Shares 
in  a  turnpike  or  other  incorporated  company,  are  not  chattels.  They  have  more 
resemblance  to  choses  in  action,  being  merely  evidence  of  property." 

In  1  GreenleaPs  Cruise,  39,  40,  the  subject  is  very  fuUy  and  fairly  presented, 
and  the  following  conclusion  arrived  at,  in  regard  to  the  state  of  the  law  in  the 
United  States:  "Latterly  it  has  been  thought  that  railway  shares  were  more 
properly  to  be  regarded  as  personal  estate." 

The  same  view  is  held  in  Bank  of  Waltham  v.  Waltham,  10  Met.  334 ;  Hutch- 
ins'  Adm'r  v.  The  State  Bank,  12  Met.  421 ;  Denton  v.  Livingston,  9  Johns. 
96,  100 ;  Planters'  &  Merchants'  Bank  v.  Leavens,  4  Alabama  753 ;  Union  Bank 
of  Tennessee  v.  The  State,  9  Yerger,  490 ;  Brightwell  v.  Mallory,  10  id.  196 ; 
Heart  v.  State  Bank,  2  Dev.  Ch.  Ill ;  State  r.  Franklin  Bank,  10  Ohio,  91,  97 ; 
Slaymaker  v.  Gettysburg  Bank,  10  Penn.  St.  373 ;  Gilpin  v.  Howell,  5  Penn. 
St.,  41,  57;  Johns©.  Johns,  1  Ohio  N.  S.  360;  Arnold  v.  Buggies,  1  Rhode 
Island  165. 

A  distinction  has  sometimes  been  attempted  between  the  shares  of  a  bank  or 
manufacturing  corporation,  and  a  turnpike  or  railway,  in  regard  to  their  partak- 
ing of  the  realty.  But  the  slightest  examination  will  satisfy  us  that  there  is  no 
substantial  ground  for  any  such  distinction.  The  one  may  be  more  intimately 
connected,  in  its  existence  or  operation,  with  real  estate,  but  both  must  have 
some  connection,  more  or  less  intimate,  and  in  both  the  shareholders  have  no 
title  to  the  land,  that  residing  altogether  in  the  corporation,  while  the  shares  are 
merely  a  right  to  the  ultimate  profits  of  the  company,  and  are  as  really  and 
imquestionably  choses  in  action  as  promissory  notes,  bills  of  exchange,  or  bonds 
and  mortgages,  of  natural  or  corporate  persons.  Wheelock  v.  Moulton,  16 
Vt.  519 ;  Isham  v.  Ben.  Iron  Co.  19  Vt.  230.     See  also  Johns  ».  Johns,  supra. 

'  Ackland  v.  Lewis,  1  K.  &  (j.  334,  Registration  cases. 


32 


RESTRICTIONS  UPON  TRANSFER. 


118 


•CHAPTER  VIII 


TRANSFER   OF  SHARES. 


SECTION   I. 


Restrictions  upon  Transfer. 


1.   Expreu  provisions  of  charier  to  be  6th 

served. 
2.   If  not    made    exclusive,    held    directtyry 

wtereljf. 
8.    Uktisual  and  inconvenient  restrictions  void. 


4.  Lien  upon  stock  Jor  the  indebtedness  of  the 
owner  is  valid. 

6.   But  such  lien  is  not  implied. 

6.  Where  transfer  is  usrongfully  refused,  ven- 
dee may  recover  value  of  the  company. 


§  32.  1.  We  cannot  here  attempt  to  show  in  detail  all  the  inci- 
dents of  the  transfer  of  stock  in  railway  companies.  It  is  transfer- 
able much  the  same  as  other  personal  property,  excepting  only  that 
any  express  provision  of  the  charter  upon  that  subject  must  be 
regarded  as  of  paramount  obligation.^ 

'  Strictly  speaking,  perhaps  no  shares  in  any  joint  enterprise  are  transferable 
80  as  to  introduce  the  assignee  into  the  association,  as  a  member,  unless  it  be 
joint-stock  companies  and  corporations,  formed  in  pursuance  of  legislative  au- 
thority. And  in  the  case  of  legislative  incorporations,  the  shares  are  transfer- 
able only  under  the  charter,  and  according  to  its  terms.     Duvergier  v.  Fellows, 

6  Bing.  248,  267,  opinion  of  Best,  Ch.  J.  A  mere  partnership  cannot  be  so 
constituted,  as  to  release  the  assignor  of  a  share  from  all  liability  to  third  per- 
sons, and  introduce  the  assignee  at  once,  and  completely,  into  his  place.  Blun- 
dell  r.  Winsor,  8  Simons,  601,  opinion  of  Shadwell,  V.  C. ;  Jackson  v.  Cocker, 
4  Beavan,  69,  63. 

In  the  English  courts  it  has  been  held,  that  where  the  charter  of  a  corpora- 
tion or  the  deed  of  settlement  required  the  assent  of  the  directors  t^  complete 
the  title  of  the  purchaser  of  shares,  it  was  the  duty  of  the  seller  to  procure 
this  assent,  in  order  to  comply  with  his  contract  to  convey.     Wilkinson  c.  Lloyd, 

7  Q.  B.  27 ;  Bosanquet  v.  Shortridge,  4  Exch.  699. 

And  all  corporations  may,  in  self-defence,  require  all  calls  made  upon  their 
stock  to  be  paid,  before  they  will  substitute  the  name  of  the  purchaser  of  shares 
upon  their  books,  for  the  original  subscriber,  as  after  this  substitution  they  have 
no  longer  any  claim  upon  such  subscriber,  and  it  would  be  liable  to  defeat  many 
public  enterprises  of  moment,  and  after  large  expenditures  have  been  incurred, 
if  the  subscribers  coidd,  at  will,  relieve  themselves  from  all  liability  to  pay  calls, 
by  transferring  their  shares  to  irresponsible  persons.     Hall  r.  Norfolk  Estuary 

8  •111 


114  TRANSFER   OF  SHARES.  CH.  VIII. 

*  2.  Ill  many  cases,  however,  where  the  charter  only  provides  a 
mode  of  transfer,  and  does  not  declare  this  mode  exclusive  of  *  all 

Co.,  7  Railw.  Cas.  503 ;  8.  c.  8  Eng.  L.  &  Eq.  361.    But  the  assignee  of  a  share 
may  always  insist  upon  becoming  a  member  upon  paying  all  calls. 

Questions  of  some  difficulty  often  arise  between  shareholders  and  the  company, 
in  regard  to  an  informal  transfer  having  been  confirmed  by  acquiescence.  In 
Shortridge  v.  Bosanquet,  16  Beav.  84 ;  s.  c.  17  Eng.  L.  &Eq.  331,  and  in  ex  pm-te 
Bagge,  13  Beav.  162 ;  s.  c.  4  Eng.  L.  &  Eq.  72,  it  is  held  that  if  the  entry  of  the 
transfer  is  made  upon  the  books  of  the  company,  and  especially  where  the  com- 
pany have  dealt  with  the  shareholder  claiming  under  the  transfer,  they  cannot 
treat  the  transaction  as  void,  for  any  want  of  form  in  the  transfer,  though  in  a 
matter  specially  required  by  the  charter  and  not  immaterial,  but  which  their  own 
irregularities  had  rendered  it  impossible  to  observe.  And  where  the  secretary'  of 
a  joint-stock  company  fraudulently  transferred  shares,  and  the  proprietor  of  the 
shares  treated  the  transaction  as  being  valid  against  the  transferee,  but  filed  a 
bill  against  the  company  for  damages,  it  was  held  he  was  not  entitled  to  relief. 
Duncan  v.  Luntley,  2  McN.  &  Gord.  30 ;  s.  c.  2  Hall  &  TweUs,  78. 

In  ex  parte  Straffon's  Executors,  4  De  G.  &  S.  256 ;  s.  c.  10  Eng.  L.  &  Eq. 
275,  the  lord  chancellor,  St.  Leonards,  thus  characterizes  these  transactions,  which, 
although  informal  in  some  respects,  are  constantly  acquiesced  in  by  both  parties, 
until  there  comes  some  crisis  in  the  affairs  of  the  company,  perhaps,  or  the  trans- 
feree becomes  insolvent.  "There  would  be  no  safety  for  mankind  in  dealings 
of  this  kind,  extensive  as  they  are,  with  so  much  money  embarked  in  them,  if 
the  courts  had  ever  held,  as  they  never  have  held,  that  every  minute  circumstance 
must  be  obeyed,  which  the  directors  themselves  ought  to  have  obeyed ;  but  if  they 
disregard  them,  if  the  shareholders  do  not  call  them  to  account  for  doing  so,  if  a 
course  of  action  has  been  adopted  in  the  particular  company,  without  complaint, 
although  they  may  have  arrived  at  making  a  man  a  shareholder,  by  what  I  should 
call  a  short  cut,  instead  of  going  through  all  the  necessary  formalities,  they  may 
be  perfectly  good  as  between  parties  thus  dealing  with  the  directors,  and  the 
directors  themselves,  so  as  to  bind  them." 

And  in  Bargate  v.  Shortridge,  5  Ho.  Lds.  297  ;  s.  c.  31  Eng.  L.  &  Eq.  44,  in 
the  House  of  Lords,  upon  elaborate  argument  and  great  consideration,  it  seems  to 
have  been  definitively  settled  in  England,  that  where  the  deed  of  a  joint-stock 
company  required  the  certificate  of  consent  of  three  directors  to  the  transfer  of 
the  shares  of  the  company,  and  in  practice  this  had  never  been  given,  but,  for 
ten  years,  transfers  had  continually  been  made  upon  the  verbal  assent  of  the 
managing  director  upon  the  spot,  and  about  nine-tenths  of  the  original  shares 
had  been  transferred  in  this  manner,  and  S.  having  transferred  his  shares  in  the 
same  mode  to  T.,  and  his  name  having  been  entered  upon  the  books  of  the  com- 
pany, they  could  not  afterwards  refuse  to  regard  T.  as  a  member. 

And  in  such  case,  where  the  directors  afterwards  cancelled  the  name  of  T.  in 
theii'  share  register-book,  on  the  ground  that  the  consent  of  the  directors  was 
wanting,  it  was  held  that  S.  had  ceased  to  be  a  member  of  the  company,  and 
was  entitled  to  an  injunction  against  a  scire  facias  prayed  out  against  him  by  a 
creditor  of  the  company,  as  a  shareholder. 

It  was  said  by  Lord  St.  Leonards,  who  delivered  the  leading  opinion :  "  Where 
*  112, 113 


§  32.  RESTRICTIONS  UPON  TRANSFER.  115 

Others,  the  provision  has  been  regarded  as  merely  directory,  and 
not  indispensable  to  the  vesting  of  title  in  the  assignee.  And 
this  has  generally  been  so  regarded,  where  the  express  provisions, 
in  relation  to  the  transfer  of  shares,  exist  only  in  the  by-laws  of  the 
corporation. 

3.  And  any  unusual  restriction  in  the  by-laws  of  a  corporation 
upon  the  transfer  of  stock,  as  that  it  shall  be  made  only  upon  the 
books  of  the  corporation,  in  person,  or  by  attorney,  and  with  the 
consent  of  the  president,  or  other  officers  of  the  corporation,  has 
been  regarded  as  void,  as  an  unreasonable  restraint  upon  trade,^ 

the  directors  of  a  company  do  acts  in  a  matter  in  which  they  have  no  authority, 
such  acts  are  altogether  null  and  void.  But  where  the  acts  arc  within  their 
power  and  duty,  and  are  either  omitted  or  improperly  done,  and  thereby  third 
parties  are  damaged,  neither  a  court  of  law  nor  of  equity  will  allow  the  com- 
pany to  take  advantage  of  their  neglect." 

This,  it  seems  to  us,  is  a  sound  distinction,  and  one  which  will  have  an  im- 
portant bearing  upon  the  fraudulent  over-issue  of  stock  by  the  directors  of  a 
company  whose  capital  is  limited,  and  all  issued  and  in  the  hands  of  bond  fide 
owners.     This  is  the  same  case  in  4  Exch.  699.     See  also  Taylor  v.  Hughes, 

2  Jones  &  La  Touche,  24 ;  Humble  v.  Langston,  7  M.  &  W.  517  ;  s.  c.  2  Railw. 
C.  633 ;  Ex  parte  Cockbum,  4  De  G.  &  Sm.  177  ;  s.  c.  1  Eng.  L.  &  Eq.  139. 

But  where  the  charter,  or  the  general  law,  requires  all  debts  of  the  owner  to 
be  paid  the  company  before  transfer  of  shares,  the  company  are  not  bound  to 
accept  a  transfer  otherwise  made.     Reg.  c.  Wing.  33  Eng.  L.  &  Eq.  80. 

•  Sargeant  c.  Franklin  Ins.  Co.,  8  Pick.  90;  Quiner  v.  Marblchead  Ins.  Co., 
10  Mass.  476;  Noyes  r.  Spalding,  27  Vt.  421;  Bates  r.  New  York  Ins.  Co., 

3  Johns.  Cas.  238 ;  Chouteau  Spring  Co.  r.  Harris,  20  Missouri,  382.  In  thi« 
last  case  the  charter  of  the  company  provided  that  the  stock  might  be  "  trans- 
ferred on  the  books  of  the  company,"  and  the  company  were  authorized  "to 
regulate  the  transfer  of  stock,"  by  by-laws.  And  a  provision  in  the  charter 
authorized  the  company,  in  certain  cases,  to  make  assessments  of  stockholders 
beyond  their  shares  of  stock. 

It  was  held  that  no  such  assessment  could  be  made  on  a  party,  after  he  had 
ceased  to  be  a  member,  by  a  transfer  of  his  stock ;  that  the  power  "  to  regu- 
late the  transfer  "  did  not  include  the  power  to  restrain  transfers,  or  to  prescribe 
to  whom  they  might  be  made,  but  merely  to  prescribe  the  formalities  to  be  ob- 
served in  making  them,  and  that  the  company  could  not  prevent  a  party  from 
selling  his  stock,  even  to  an  insolvent  person;  that  an  assignment  "upon  the 
books  of  the  company  "  was  sufficient  to  effect  a  change  of  ownership,  without 
taking  out  a  new  certificate  in  the  name  of  the  assignee ;  and  that  any  transfer 
in  writing  was  valid  against  the  company,  if,  being  notified,  they  refused  to 
allow  it  to  be  made  according  to  their  by-laws. 

And  in  Dauchy  c.  Brown,  24  Vt.  197,  which  was  an  action  against  stock- 
holders, upon  the  proper  debt  of  the  corporation,  where  the  charter  provided, 
that  the  persons  and  property  of  the  corporators  shall  be  holden  to  pay  its  debts, 


116  TRANSFER  OF   SHARES.  CH.  Vin. 

*  unless  as  a  provision  to  secure  the  indebtedness  of  shareholders. 
In  such  case  it  is  sometimes  said  the  assignee  need  only  make  his 
right  known  to  the  company,  and  require  the  transfer  entered  upon 
the  books,  and  his  title  becomes  perfected.^ 

4.  But  if  the  former  owner  was  indebted  to  the  corporation,  and 
the  charter  required  all  such  indebtedness  to  be  liquidated,  before 
transfer  of  stock,  such  indebtedness  will  remain  a  lien  upon  the 
stock,  in  the  hands  of  the  assignee.*    And  where  the  *  charter  of 

and  that  any  execution,  which  should  issue  against  the  corporation,  might  be 
levied  upon  the  person  or  property  of  any  individual  thereof,  it  was  held,  that 
the  stockholders  were  only  liable,  in  default  of  the  corporation,  and  that  judg- 
ment should  first  be  recovered  against  the  corporation,  and  the  statute  remedy 
strictly  pursued.  See,  also,  in  regard  to  the  remedy  against  stockholders,  who 
are  by  statute  made  personally  liable,  Southmayd  v.  Russ,  3  Conn.  62 ;  Middle- 
town  Bank  r.  Magill,  5  Conn.  28 ;  Child  v.  Coffin,  17  Mass.  64 ;  Roman  v.  Fry, 
6  J.  J.  Marshall,  634.  And  in  a  late  English  case,  Robinson  v.  Chartered  Bank, 
Law  Rep.  1  Eq.  32,  where  the  charter  required  that  no  one  should  become  a  trans- 
feree of  shares  unless  with  the  approval  of  the  directors,  it  was  held  that  the 
directors  must  use  this  power  reasonably  and  would  be  controlled  in  equity. 
But  where  the  charter  of  a  corporation  required  all  transfers  to  be  executed  by 
both  parties  and  approved  by  the  directors,  and  the  transferror's  name  had  been 
entered  upon  the  registry  upon  his  own  execution  merely,  and  the  company  was 
being  wound  up,  the  court  refused  an  application  to  remove  his  name  from  the 
registry.     Walker's  case,  Law  Rep.  2  Eq.  554. 

^  Sargent  v.  Franklin  Ins.  Co.,  8  Pick.  90 ;  United  States  v.  Vaughan,  3  Bin- 
ney,  394;  Ellis  v.  Essex  Bridge  Co.,  2  Pick.  243;  Chester  Glass  Co.  v.  Dewey, 
16  Mass.  94;  Agricultural  Bank  v.  Burr,  11  Shepley,  256;  Same  v.  Wilson, 
id.  273. 

*  Union  Bank  v.  Laird,  2  Wheaton,  390 ;  Bank  of  Utica  v.  Smalley,  2 
Cowen,  770 ;  Rogers  v.  Huntingdon  Bank,  12  Serg.  ♦&  R.  77 ;  Downer  v.  Bank 
of  Zanesville,  Wright,  477 ;  Farmers'  Bank  of  Maryland  v.  Iglehart,  6  Gill, 
60 ;  Hall  v.  U.  S.  Insurance  Co.,  5  Gill,  484.  See  Angell  &  Ames,  §  355  and 
note.  In  Marlborough  M.  Co.  v.  Smith,  2  Conn.  579,  it  was  said  the  transfer 
of  shares  to  constitute  the  assignee  a  stockholder  must  be  in  strict  conformity  to 
the  charter  and  by-laws.  And  in  the  recent  case  of  Pittsburg  &  Connellsville 
Railw.  V.  Clark,  29  Penn.  St.  146,  Ch.  J.  Lewis  goes  into  an  elaborate 
review  of  the  cases  to  show,  that  under  the  Pennsylvania  statutes,  which  pro- 
vide, that  no  transfer  of  shares  shall  be  made  while  the  holder  remains  indebted 
to  the  company,  except  by  consent  of  the  board  of  directors,  and  no  transfer 
shall  discharge  any  liabilities  before  incurred ;  that  both  the  stock  and  the  holder 
remain  liable  for  all  calls  due  before  the  transfer,  and  that  the  original  sub- 
scriber, who  promised  to  pay  fifty  dollars  on  a  share,  is  indebted  to  the  company, 
before  calls  made,  within  the  meaning  of  the  statute ;  and  even  where  the  trans- 
fer is  made  with  the  consent  of  the  directors,  will  remain  liable  until  all  calls  are 
paid,  notwithstanding  the  statute  subjects  the  transferee  also  to  a  like  liability. 
The  following  extract  from  the  opinion  of  the  learned  judge  places  the  points 
*  114,  116 


§  32.  RESTRICTION   UPON  TRANSFER.  117 

the  company  requires  the  payment  of  all  sums  due  before  register- 
ing a  transfer,  this  will  embrace  all  calls  made  and  which  are  pay- 
able at  the  date  of  the  transfer.* 

decided  in  a  clear  light :  "  Is  an  original  subscriber,  who  has  bound  himself  in 
writing  to  pay  fifly  dollars  per  share,  but  who  has  only  paid  five  dollars  per 
share  on  his  subscription,  '  indebted '  to  the  company  within  the  meaning  of  the 
act  ?  Why  should  this  question  receive  a  negative  answer  ?  His  engagement 
to  pay  money  is  as  much  a  debt  as  any  other  engagement  for  the  payment  of 
money.  A  debt  may  be  contracted  for  stock  in  a  railroad  company  as  readily 
as  for  any  thing  else.  It  is  true  that  the  debt  is  payt^ble  by  instalments  when 
required  from  time  to  time  by  the  directors.  But  it  is  none  the  less  a  debt  on 
that  account.  It  is  debitum  in  presenti  sohendum  in  futuro.  It  is  a  present 
debt  payable  at  some  future  day.  It  is  well  settled  that  the  lien  given  by  statute 
to  a  corporation,  upon  the  shares  of  stockholders  '  indebted''  to  it,  extends  to  aU 
debts,  whether  payable  presently  or  at  a  future  time,  except  where  the  statute 
limits  the  lien  to  debts  actually  due  and  payable,  and  that  a  stockholder  indebted 
to  the  corporation,  although  the  debt  may  not  be  due,  cannot  transfer  his  stock 
without  the  consent  of  the  corporation.  Rogers  r.  Huntingdon,  12  S.  &  R.  77 ; 
Grant  r.  Mechanics^  Bank  of  Philadelphia,  15  S.  &  R.  140;  Sewell  v.  Lancaster 


*  Orpen  ex  parte,  9  Jur.  N.  S.  616.  This  question  is  elaborately  discussed 
in  a  recent  case  in  Maryland,  with  the  following  results :  — 

The  charter  of  a  bank  provided  that  its  shares  of  stock  shall  be  transferable 
upon  the  books  of  the  corporation  only  according  to  such  rules  as  shall  be 
established  by  the  president  and  directors ;  but  all  debts  actually  due  and  paya- 
ble to  the  corporation  by  a  stockholder,  requesting  a  transfer,  must  be  satisfied 
before  such  transfer  shall  be  made,  unless  the  president  and  directors  shall  direct 
to  the  contrary. 

Held,  1 .  That  this  lien  on  the  stock  is  not  waived  by  the  form  of  a  certificate 

for  stock  declaring  that  the  stockholder  "  is  entitled  to shares  of  stock 

transferable  only  at  said  bank  personally  or  by  attorney  on  surrender  of  this 
certificate." 

2.  The  assignee  of  a  stockholder  takes  the  equitable  assignment  subject  to 
the  rights  of  the  bank  against  the  stockholder,  under  its  charter,  of  which  he  is 
bound  to  take  notice. 

8.  This  lien  attaches  to  balances  due  the  bank  by  the  stockholder,  for  over- 
drafls  on  checks,  but  not  to  notes  or  bills  on  which  the  stockholder  may  be  a 
party,  as  maker  or  indorser,  and  not  due  at  the  time  the  transfer  is  demanded. 

4.  The  words  "  debts  actually  due  and  payable,"  imply  more  than  mere 
indebtedness ;  the  indebtedness  contemplated  is  only  a  debitum  sohendum  in  pre- 
senti, not  in  futuro. 

5.  Where  an  assignee  demands  a  transfer,  bat  refuses  to  pay  the  debts  then 
due  the  bank  by  the  stockholder,  and  afterwards  makes  a  second  demand,  when 
other  notes  of  the  stockholder  had  become  due  and  payable,  he  cannot  obtain  a 
transfer  without  paying  all  the  debts  due  at  the  time  of  the  last  demand.  Reeae 
&  Fisher  r.  Bank  of  Commerce,  14  Md.  271. 


118  TRANSFER  OF  SHARES.  CH.   VIII. 

*  5.  A  corporation  has  no  implied  lien  upon  stock  for  the  liabili- 
ties of  the  stockholders  to  the  company.® 

Bank,  17  S.  &  R.  285.  It  is  very  clear  that  the  defendants,  at  the  time  of  the 
alleged  transfer  of  their  stock,  were  '  indebted '  to  the  company  to  an  amount 
nearly  equal  to  the  whole  of  their  subscription.  They  had,  therefore,  no  right 
whatever  to  transfer  their  stock  without  the  consent  of  the  board  of  directors. 
It  is  true  that  as  between  them  and  the  purchaser,  if  the  latter  thought  proper 
to  contract  for  a  contingent  or  uncertain  interest,  the  transfer  might  be  good  for 
some  purposes.  8  Pick.  90 ;  9  Pick.  202 :  2  Cowen,  770.  But  it  passes  no  title 
to  the  stock,  and  confers  no  'privileges,  immunities,  or  franchises'  whatever 
upon  the  purchaser.  The  consent  of  the  board  of  directors  is  of  itself  the 
originating  act  in  the  change  of  title,  and  does  not  merely  operate  to  perfect  the 
conveyance  previously  begun.  Marlborough  Man.  Co.  v.  Smith,  2  Conn.  579 ; 
Northop  V.  Newtown  &  Bridgeport  Turnpike  Co.,  6  Conn.  544;  Oxford  Turn- 
pike Co.  V.  Bunnell,  6  Conn.  552.  So  long  as  the  stock  remains  unpaid,  the 
corporation  has  a  right  to  refuse  to  receive  new  members  in  place  of  the  original 
adventurers.  Until  the  stock  is  fully  paid  up,  and  the  stockholders  otherwise 
free  from  debt  to  the  company,  they  have  no  right  whatever  to  introduce 
strangers  into  the  company  in  their  places.  A  right  which  depends  upon  the 
consent  of  others  is  no  right  at  all.  The  transfer  to  Mr.  Stanton  was,  there- 
fore, of  itself,  a  nullity.  An  attempt  was  made  to  give  it  vitality  by  parol  evi- 
dence, from  which  the  consent  of  the  board  of  directors  was  to  be  inferred  by 
the  jury.  But  there  is  no  evidence  tending  to  show  that  the  question  was  ever 
presented  to  the  consideration  of  the  board,  or  that  any  action  was  taken  by  the 
board  in  regard  to  the  transfer.  In  ordinary  business  transactions  between  a 
corporation  and  strangers,  the  authority  of  agents  and  the  existence  of  contracts 
may  be  implied  from  acquiescence  and  other  circumstances.  So  where  the 
assent  of  the  board  is  required  by  a  by-law  only,  the  execution  of  the  by-law 
may  be  modified  by  the  practice  of  the  corporation.  Ins.  Co.  v.  Smith,  1  Jones, 
126.  But  when  the  act  of  incorporation  grants  a  power,  the  mode  prescribed 
by  the  statute  for  its  exercise  must  be  strictly  pursued.  5  Barb.  S.  C.  613, 
614 ;  2  Cranch.  127.  The  question  here  is,  whether  one  member  of  a  corpora- 
tion has  been  legally  substituted  for  another.  The  title  of  the  original  stock- 
holder was  established  by  written  evidence,  and  could  have  no  legal  existence 
without  it.  Thames  Tunnel  v.  Sheldon,  6  B.  &  C.  341.  The  title  of  the  substi- 
tute must  be  shown  by  evidence  of  the  same  character.  It  is  the  duty  of  the 
directors  to  keep  minutes  of  their  proceedings,  and  the  proper  evidence  of  their 
assent  to  a  transfer  is  a  recorded  resolution  adopted  when  the  board  was  Id  ses- 


•  Mass.  Iron  Co.  v.  Hooper,  7  Cush.  183 ;  Heart  v.  State  Bank,  2  Dev.  Ch. 
Ill;  Sargent  r.  Franklin  Ins.  Co.,  8  Pick.  90,  and  cases  cited  supra,  note  2. 
But  dividends  due  and  unpaid  may  be  said  to  be  a  fund,  in  the  hands  of  the 
corporation,  which  they  are  not  obh'ged  to  pay  to  the  assignee  of  the  stock, 
until  their  debts  from  the  assignor  are  liquidated.  Dividends  are  strictly  due 
only  to  the  assignor,  and  would  not  probably  pass  by  a  mere  sale  of  the  stock, 
unless  there  were  some  special  ground  for  giving  the  transfer  of  the  stock  that 
operation. 

♦116 


§88. 


CONTRACTS  TO  TRANSFER  STOCK. 


119 


*  6.  And  when  the  company  wrongfully  refuse  to  record  transfers 
of  shares  on  their  books,  the  vendee  may  recover  the  price  of  such 
shares,  the  company  liaving  caused  them  to  be  sold,  as  tlie  property 
of  tlie  vendor.^ 

SECTION  II. 
Contracts  to  transfer  Stock. 


1.  Traru/er  under  English  statutes.    Regis- 

tered companies. 

2.  Contracts  to  transjer  stock  valid,  where 

bon&  fide. 
8.    Vendor  must  have  the  stock,  when  due, 
n.  8.    Vendor  must  procure  the  consent  ofdi- 

recUm,  where  requisite. 
4.  Force  ofmaages  of  stock-exchange. 
6.    Company  will  reform  their  registry  at  its 

peril. 


6.  10.    Company  may  compel  one  to  accept 

shares  on  contract. 

7.  Stock  standing  in  joint  names  belongs  to 

survivors. 

8.  Mode  and  effect  of  correcting  registry. 

9.  If  the  company  vary  the  contra(^,  spe- 

cific performance  will  be  denied. 

10.  Closing  contracts  6y  offer  and  acceptance, 

11.  Form  of  transfer.     Two  may  join  in  one 

transfer. 


§  33.  1.  Questions  often  arise  in  regard  to  transfers  of  stock  *  in 
incorporated  companies,  as  to  the  quantity  of  interest  conveyed, 
the  title  of  the  person  making  the  conveyance,  and  many  other  in- 
cidents.     The  English  statutes  in  regard  to  the  registration  of 

sion.  Where  the  transfer  is  made  by  a  director,  it  ought  further  to  appear  that 
the  resolution  of  assent  was  carried  without  his  vote.  If  the  resolution  was 
adopted  and  entered  on  the  minutes,  the  loss  or  destruction  of  the  entry  might 
be  supplied  by  parol  proof.  But  in  no  other  case  can  parol  evidence  be  re- 
ceived to  show  that  an  assignee  has  been  admitted  as  a  member  of  the  corpora- 
tion in  the  place  of  the  assignor.  There  was  no  legal  evidence  of  the  assent  of 
the  board  of  directors  to  the  transfer,  and  therefore  no  legal  evidence  of  a  valid 
transfer  of  the  stock.  If  there  had  been,  we  do  not  see  how  the  defendants  can 
claim  to  be  discharged  by  it  from  •  liabilities '  previously  incurred.  Their  sub- 
scription to  the  stock  of  the  company  created  a  liability  to  be  called  upon 
for  payment  in  such  instalments  as  the  directors  required.  Conceding  that  it 
was  not  an  obligation  for  present  payment,  and  supposing,  for  a  moment,  that 
it  was  not  strictly  a  debt,  it  was  certainly  a  '  liability,^  which  is  a  word  of  more 
extensive  signification  than  '  debt.*  The  act  of  assembly  is  express  in  its  direc- 
tion that  a  transfer,  even  with  the  assent  of  the  board,  shall  not  have  the  effect 
of  discharging  any  liabilities  or  penalties  heretofore  incurred  by  the  owner  of 
the  stock.  We  see  no  rea.son  for  restricting  this  proviso  to  '  liabilities '  which 
had  become  due  and  payable  before  the  transfer.  It  is  sufficient  to  bring  a 
*  liability '  within  the  proviso  that  it  had  been  '  incurred '  by  the  owner  before 
the  transfer.  It  is  not  necessary  that  it  should  also  have  become  due  and  paya- 
^  ble."  The  same  principle  was  reaffirmed  in  Graff  ».  Pittsburg  &  Steubenville 
Railw.,  31  Penn.  St.  489. 

•117,118 


120  TRANSFER   OP  SHARES.  CH.  VIII. 

railway  companies  are  not  intended  to  aflfect  the  property  in  the 
shares,^  and  a  transfer  is  valid,  although  made  before  the  registra- 
tion .^ 

2.  It  would  seem,  too,  that  a  contract  to  transfer  stock  in  rail- 
way companies,  at  a  future  time,  which  the  party  neither  has,  nor 
is  about  to  have,  but  expects  to  purchase  in  the  market,  for  the 
purpose  of  fulfilling  his  undertaking,  is  nevertheless  a  valid  con- 
tract, and  not  illegal,  or  against  the  policy  of  the  law,^  and  that 
the  intimation  of  Lord  Tenterden^  that  such  contracts  were  illegal, 
and  not  to  be  encouraged  by  the  law  or  its  ministers,  is  *  not  to  be 
regarded,  at  this  time,  as  sound  law,  however  good  sense,  or  good 
morality,  it  may  seem  to  be. 

3.  It  is  clearly  not  a  stock-jobbing  transaction  within  the  Eng- 
lish statute.^    But  to  the  performance  of  such  a  contract  it  seems 

*  The  London  &  Brighton  Railw.  Co.  ».  Fairclough,  2  Railw.  Cases,  544 ; 
8.  c.  2  M.  &  G.  674. 

'  The  Sheffield,  Ashton-under-Lyne,  &  Manchester  Railw.  Co.  v.  Woodcock, 
2  Railw.  Cases,  522 ;  s.  c.  7  M.  &  W.  574. 

3  Hibblewhite  v.  M'Morine,  5  M.  &  W.  462.  Mr.  Walford,  in  his  treatise,  256 
and  note,  intimates,  that  the  law  of  France  regards  this  class  of  contracts  as  ille- 
gal, and  cites  Hannuic  v.  Goldner,  11  M.  &  W.  849,  in  confirmation.  But  the 
case  does  not  expressly  decide  the  point.  That  was  pleaded,  and  the  court  held 
the  plea  bad,  as  amounting  to  the  general  issue,  and  the  party  had  leave  to 
amend.  Perhaps  it  is  charitable,  both  to  the  pleader  and  to  the  country,  to  sup- 
pose such  is  the  law  there,  as  Mr.  Walford  seems  to  have  done.  But  where  the 
deed  of  settlement  requires  the  assent  of  the  directors  to  a  transfer  of  shares, 
and  the  vendor  did  not  obtain  it,  and  in  the  mean  time  the  price  of  shares  fell 
in  the  market,  held  the  vendee  might  recover  back  his  money.  Wilkinson  ». 
Lloyd,  7  Q.  B.  27.  But  where  the  plaintiflfs  covenanted  to  subscribe  for  stock 
in  a  railway,  and  pay  ten  per  cent  thereon,  and  then  transfer  it  to  defendant, 
who  agreed  thereupon  to  pay  the  residue  and  save  the  plaintiffs  harmless,  and 
the  plaintiffs  subscribed  for  the  stock  and  paid  the  ten  per  cent ;  but  the  by-laws 
of  the  company  provided  for  the  transfer  of  the  stock  on  the  books  of  the  com- 
pany only  after  the  payment  of  thirty  per  cent  of  its  amount,  unless  by  the  con- 
sent of  the  directors,  which  they  refused  to  give,  in  this  case,  and  the  plaintiffs 
tendered  the  defendant  an  instrument  whereby  they  assigned  and  transferred 
the  stock  and  constituted  him  their  attorney  to  transfer  the  same  on  the  books  of 
the  company,  which  was  refused  as  not  being  a  compliance  with  the  contract : 
It  was  held,  in  an  action  to  recover  damages  for  the  breach  of  the  contract,  that 
the  plaintiffs  had  complied  with  their  covenant,  and  might  recover,  not  the  differ- 
ence between  the  value  of  the  stock  at  the  time  of  refusal,  and  the  sum  due 
upon  the  subscription,  but  the  whole  sum  due  and  interest.  See  also  Orr  v. 
Bigelow,  4  Kernan,  556. 

*  In  Bryan  r.  Lewis,  Ry.  &  M.  386,  and  in  Lorymer  r.  Smith,  1  B.  &  C.  1. 
»  Hewitt  V.  Price,  4  M.  &  G.  355 ;  Mortimer  t?.  M'CaUan,  6  M.  «&  W.  58. 

♦119 


§  33.  CONTRACTS  TO  TRANSFER  STOCKS.  121 

to  be  requisite,  that  the  seller  should  bond  fide  procure  the  stock, 
by  the  time  appointed  for  the  transfer.* 

4.  The  English  reports,  both  in  law  and  equity,  and  especially 
the  more  recent  ones,  abound  in  cases  more  or  less  affecting  trans- 
fers of  shares  on  the  stock-exchange,  and  the  practice  and  law 
governing  transactions  between  brokers.  These  rules  are  allowed 
to  have  great  weiglit  in  fixing  the  construction  and  effect  of  con- 
tracts made  through  the  instrumentality  of  brokers.  In  the  sale 
of  shares  in  companies  requiring  the  consent  of  the  directors  or  of 
the  company  itself  to  the  transfer,  it  is  not  understood,  according 
to  these  rules,  that  the  vendor  or  his  broker  undertakes  to  procure 
that  consent,  and  if  he  does  all  that  is  requisite  to  effect  a  transfer  of 
the  equitable  interest  of  the  property,  and  *  there  is  no  obstruction 
to  the  vendee  in  obtaining  the  registration  of  such  transfer,  by  tak- 
ing the  prescribed  steps,  the  transfer  will  be  regarded  as  complete.^ 

•  Hibblewhite  v.  M'Morine,  2  Railw.  C.  61-66 ;  8.  c.  6  M.  &  W.  200.  The 
comments  of  Ishatn,  J.,  in  Noyes  r.  Spaulding,  27  Vt.  420,  429,  may  be  re- 
garded, perhaps,  as  giving  the  present  state  of  the  English  law  upon  this  subject. 
"  Contracts  for  the  sale  of  stock  of  this  character  on  time  are  valid  at  common 
law,  and  can  be  enforced  by  action.  The  statute  7  Geo.  2,  ch.  8,  made  perpetual 
by  10  Geo.  2,  ch.  8,  has  rendered  some  contracts  of  that  character  illegal.  They 
are  rendered  void  so  far  as  the  public  stocks  of  that  country  are  concerned,  when 
the  seller  had  no  stock  at  the  time  of  making  the  contract,  and  none  was  ever 
intended  to  be  transferred  by  the  parties,  but  their  intention  was  to  pay  the 
difference  merely  that  may  exist  between  the  market  value  of  the  stock  at  the 
time  of  the  transfer,  and  the  price  agreed  to  be  paid.  Such  contracts  are 
rendered  void  by  that  statute,  and  are  treated  as  wagering  contracts ;  '  the  seller 
virtually  betting  that  the  stock  will  fall,  the  buyer  that  it  will  rise.'  Chitty  on 
Bills,  112,  note  (w).  It  has  been  held,  that  railroad  stock  is  not  within  the  act. 
Hewitt  r.  Price,  4  M,  &  G.  355 ;  8.  c.  3  Railw.  C.  175 ;  Fisher  v.  Price,  11  Beav. 
194.  In  the  case  of  Mortimer  r.  M^Callan,  6  M.  &  W.  70,  Lord  Abinger  ob- 
served, •  that  the  act  was  made  for  the  purpose  of  preventing  what  is  declared 
to  be  illegal  trafficking  in  the  funds  by  selling  fictitious  stock  merely  by  way 
of  differences ;  but  it  never  was  intended  to  affect  bond  Jide  sales  of  stock.' 
Elsworth  V.  Cole,  2  M.  &  VV.  31 ;  2  Kent,  Comm.  468,  note  (b).  In  the  ca^ 
of  Grizewood  v.  Blane,  20  Eng.  L.  &  Eq.  290,  it  was  held,  that  a  colorable  con- 
tract for  the  sale  of  railroad  shares,  where  no  transfer  is  intended,  but  merely 
•  differences,^  amounting  to  the  rise  or  fall  of  the  market,  is  gaming  within  the 
8  and  9  Vict.  ch.  109,  §  18;  8.  c.  11  Common  Bench,  638." 

'  Stray  v.  Russell,  1  Ellis  &  Ellis,  888  and  916 ;  8.  c.  6  Jur.  N.  S.  1296 ; 
8.  c.  affirmed  in  Exch.  Chamb.  2  Ellis  &  Ellis,  592.  See  also  Field  v.  I^lean, 
6  H.  &  N.  617,  where  a  custom  of  the  stock  exchange  in  regard  to  a  particular 
class  of  shares,  not  to  deliver  them  on  contracts  of  sale  until  the  payment  of  the 
price,  was  held  operative. 
•  120 


122  TRANSFER   OP  SHARES.  CH.  VIII. 

5.  Where  the  company  assume  to  erase  transfers  from  their 
books  on  the  alleged  ground  that  they  are  merely  colorable,  and 
made  for  the  purpose  of  injuriously  affecting  the  interest  of  the 
company  or  others,  they  assume  the  burden  of-  showing  such  to  be 
the  facts  ;  and  the  transferees  will  be  entitled  to  a  mandamus  to 
compel  the  company  to  restore  their  names  to  the  registry  as  the 
proprietors.® 

6.  It  is  competent  for  the  company  to  maintain  a  bill  in  equity 
against  one  upon  an  agreement  to  accept  shares,  although  no  writ- 
ing has  been  signed  by  the  defendant  according  to  the  statute  re- 
quiring the  acceptance  to  be  in  writing.  The  contract  may  be 
enforced,  as  an  agreement  to  do  what  the  statute  requires,  and  the 
decree  will  settle  the  question  whether  the  defendant  or  some  other 
one  is  the  lawful  holder  of  the  shares  in  question.^ 

7.  Where  stock  is  allowed  to  stand  in  the  joint  names  of  two 
persons,  they  will  be  regarded  as  joint  tenants,  unless  something  is 
shown  to  the  contrary,  and  the  company  may  treat  the  survivor  as 
the  owner  of  the  whole.^® 

8.  A  court  will  not  interfere  to  compel  a  joint-stock  company  to 
correct  their  registry  by  removing  one  name  and  inserting  another 
while  an  action  at  law  is  pending  in  regard  to  the  same  matter.^^ 
Where  the  registry  is  altered  under  a  misapprehension  as  to  the 
genuineness  of  a  transfer  it  will  not  have  the  effect  to  transfer  the 
shares.^  Specific  performance  of  a  contract  to  *  sell  shares  will  be 
decreed  in  equity,  notwithstanding  the  constitution  of  the  company 
provide  that  no  shares  shall  be  transferred  except  in  such  mode  as 
the  board  shall  approve,  and  the  board  refuse  to  give  its  consent 
to  the  transfer.  1^    • 

9.  If  the  company  in  their  notice  of  allotment  annex  a  condition 
which  they  have  no  power  to  do,  it  will  be  regarded  as  such  a  varia- 

«  Ward  V.  South  Eastern  Railw.,  2  EUis  &  Ellis,  812 ;  s.  c.  6  Jur.  N.  S.  890. 

•  N.  B.  &  Canada  L.  Co.  r.  Muggeridge,  4  Drew.  686 ;  Bog  Lead  Co.  v. 
Montague,  10  C.  B.  N.  S.  481 ;  8.  c.  8  Jur.  N.  S.  310. 

'»  Garrick  v.  Taylor,  3  Law  T.  N.  S.  460.  And  this  will  be  so,  notwithstand- 
ing, by  the  rules  of  the  bank,  there  was  to  be  no  benefit  of  survivorship,  it 
appearing  to  have  been  the  purpose  of  the  deceased  to  have  her  share  go  to  the 
survivor.  Garrick  v.  Taylor,  29  Beav.  79 ;  7  Jur.  N.  S.  116,  affirmed  by  Lords 
Justices,  10  W.  R.  49. 

»  Harris  ex  parte,  29  Law  J.  Exch.  864;  s.  c.  5  H.  &  N.  809. 

'»  Hare  v.  London  &  N.  W.  Railw.,  1  Johns.  Eng.  Ch.  722. 

"  Poole  p.  Middleton,  29  Beav.  646 ;  8.  c.  7  Jur.  N.  S.'  1262. 
*121 


§34. 


INTERVENING   CALLS,  OB  ASSESSMENTS. 


123 


tion  of  the  contract  that  a  court  of  equity  will  not  interfere  to 
decree  specific  performance  of  the  original  contract.  As  when  the 
company  in  such  notice  require  the  allottee  to  sign  the  deed  of  set- 
tlement on  pain  of  forfeiture  of  the  shares,  when  the  constitution 
of  the  company  gave  no  such  power.^* 

10.  The  learned  judge,  Lord  Chancellor  Westburi/,  here  dis- 
cusses the  general  questions  involved,  and  concludes,  that  in  gen- 
eral the  court  will  specifically  enforce  a  contract  to  accept  of  shares 
in  a  joint-stock  company.  His  lordship  explains  much  at  length 
his  own  views  of  the  true  modus  operandi  in  effecting  contracts  by 
means  of  written  offers  and  acceptance,  and  concludes,  very  justly, 
we  think,  that  one  who  attempts  to  enforce  such  a  contract  must 
show  that  the  acceptance  on  his  part  was  prompt,  simple,  and  un- 
qualified ;  and  that  where  new  conditions  are  made  in  the  accept- 
ance the  contract  will  not  be  regarded  as  closed  until  assent  is  given 
by  the  other  party,  either  expressly  or  by  fair  implication,  to  such 
conditions. 

11.  The  transfer  of  shares  intended  to  be  recorded  on  the  books 
of  the  company  should  contain  nothing  but  the  transfer  of  the  title. 
And  where  there  are  shares  in  different  companies  transferred 
between  the  same  parties  at  the  same  time,  it  will  be  more  con- 
venient to  have  a  separate  transfer  for  each  company.^  But  as  to 
the  mere  conveyance  of  title  between  the  parties,  one  conveyance 
is  sufficient.  And  it  is  held  even  that  two  different  owners  may 
join  in  one  conveyance  to  the  same  person.^^ 


♦SECTION  III 


Intervening  Calls,  or  Assessments. 


1.  Vendor  mutt  pay  caiU,  if  that  is  requisite      n.  2.    Calls  paid  by  vendor  after  executing 

to  pass  title.  transfer.  ' 

2.  Generally  it  is  matter  of  construction,  and 

inference. 

§  84.   1.   It  has  been  said,  too,  that  the  contractor  to  transfer 
stock  must  see  to  it  that  all  calls  are  met,  up  to  the  time  of  the 

"  Oriental  I.  Steam  Co.  v.  Briggs,  2  Johns.  &  H.  625  ;  8.  c.  8  Jur.  N.  S.  201. 
'*  Ix)r(l  Campbell,  Ch.  J.,  in  Reg.  ».  General  Cemetery  Co.,  6  £.  &  B.  416, 
419 ;  Copeland  v.  North  Eastern  R.  Co.,  Id.  277. 
'•  Wills  V.  Bridge,  4  Exch.  193. 

♦122 


124  TRANSFER   OP  SHARES.  CH.  VIII. 

transfer,  as  in  general  the  charters  of  snch  companies,  or  their 
by-laws,  prohibit  the  transfer  of  stock  while  calls  remain  unpaid.^ 
But  we  have  seen  that  this  is  a  provision  for  the  protection  of 
the  company,  and  in  which  they  alone  are  interested,  and  which 
will  not  ordinarily  avoid  a  sale,  between  other  parties,  otherwise 
valid. 

2.  And  it  would  seem  that  the  question,  upon  which  party  the 
duty  to  pay  future  calls  shall  rest,  is  one  of  construction,  in  the 
absence  of  express  stipulation  ;  at  all  events,  one  of  intention.  It 
may  perhaps  be  safe  to  say  that  the  sale  of  stock,  in  the  present 
tense,  ordinarily  implies  that  it  is  free  from  incumbrance  of  any 
kind,  unless  there  is  some  exception  or  qualification  in  the  contract. 
And  that  may  be  the  common  presumption,  in  regard  to  contracts 
to  deliver  stock,  in  future.  But  in  the  latter  case  the  presumption 
is  not,  by  any  means,  of  so  conclusive  a  character  as  in  the  former, 
and  sometimes,  in  sucli  cases,  it  has  been  held  not  incumbent  upon 
the  seller  to  pay  intervening  calls.^ 

>  Walford,  256,  257.  And  under  the  English  statute  8  Vict.  ch.  16,  §  16, 
providing  that  no  transfer  of  shares  shall  be  valid  until  he  shall  pay  any  call  due 
upon  such  shares,  or  upon  any  other  shares  held  by  him,  does  not  apply  to  the 
transfer  of  shares  upon  which  no  calls  are  due,  notwithstanding  the  transferror 
may  hold  shares  not  fully  paid  up.  Hubbersty  v.  Manch.,  Sheff.  &  Lincolnsh. 
Railw.,  Law  Rep.  2  Q.  B.  59. 

'  Shaw  V.  Rowley,  16  M.  &  W.  810 ;  s.  c.  5  Railw.  C.  47.  In  this  case  it  was 
held  no  impediment  to  the  seller's  readiness  to  convey  the  shares,  that  he  had  not 
paid  an  intervening  call,  as  he  might  do  it  at  the  moment  of  executing  the  trans- 
fer, and  the  court  say  the  call  was  ultimately  to  be  paid  by  the  purchaser. 

In  Humble  v.  Langston,  7  M.  &  W.  517 ;  s.  c.  2  Railw.  C.  533,  it  is  decided, 
that  upon  the  sale  and  transfer  of  the  shares,  where  the  purchaser's  name  is  not 
substituted,  on  the  register  of  the  company,  for  that  of  the  seller,  but  the  stock 
still  standing  in  his  name,  and  he  is  thereby  subjected  to  the  payment  of  future 
calls,  he  cannot  recover  the  money  of  the  purchaser,  because  there  is  no  implied 
contract  to  that  effect,  resulting  from  the  transaction.  This  is  certainly  a  most 
remarkable  decision,  and  it  is  something  of  a  task  to  be  able  to  read  the  opinion 
of  the  court,  by  which  this  result  is  reached,  with  tolerable  patience.  The  con- 
clusion is  certainly  not  fortified  either  by  reason  or  analogy. 

And  in  the  Cheltenham  &  Great  W.  Union  Railw.  Co.  r.  Daniel,  2  Q.  B.  281  ; 
8.  c.  2  Railw.  C.  728,  it  is  decided,  that  the  purchaser  of  shares  may,  by  way  of 
estoppel  in  jjais,  be  made  liable  for  calls,  before  his  name  is  actually  substituted 
for  that  of  the  seller  upon  the  register  of  shares.  If  so,  both  parties  are  liable  for 
the  calls,  and  the  seller,  while  his  name  remains  upon  the  register,  is  the  mere 
surety  of  the  purchaser,  as  to  future  calls.  And  what  is  a  more  natural  or  neces- 
sary conclusion  in  the  mind  of  any  one  having  the  common  sense  of  justice,  than 
to  imply,  that  while  the  purchaser  suflfers  the  seller's  name  to  remain  upon  the 


§35. 


TRANSFER  BT  DEED  IN  BLANK. 


125 


•SECTION  IV. 


Transfer  by  Deed  in  Blank. 


1,  2.    Blank  transfer  formerly  held  invalid  in 

England. 
8.   Rule  different  in  Anurica. 


4.   Deed  executed  in  blank  and  filled  by  pro- 
curation valid. 


§  35.  1.  Ordinarily  the  transfer  of  stock,  or  a  contract  to  trans- 
fer, is  not  required  to  be  in  any  particular  form.  All  that  is 
*  requisite,  is,  the  same  as  in  any  other  contract,  the  meeting  of  the 
minds  of  the  parties.  But  in  some  cases  the  shares  are,  by  the 
express  requirements  of  the  charter,  made  transferable  only,  by 
deed  executed  by  both  parties  to  the  transfer. 

2.  And  in  such  case  it  was  considered,  that  a  deed  executed  by 
the  seller,  with  a  blank  for  the  name  of  the  transferee,  was  no  com- 
pliance with  the  statute.^     The  opinion  of  the  court  seems  to  rest 

register,  and  liable  to  the  pajinent  of  calls,  through  his  neglect,  he  does  im- 
pliedly promise  to  indemnify  him  against  all  loss  on  that  account  ?  See  Burnett 
V.  Lynch,  6  B.  &  C.  589. 

But  the  case  of  Humble  v.  Langston  is  reaffirmed  in  the  subsequent  case  of 
Sayles  v.  Blane,  6  Railw.  C.  79.  These  cases  can  only  be  accounted  for,  upon 
the  principle  of  discouraging  blank  unregistered  transfers,  which  have  the  effect 
to  evade  the  stamp  duties.     Shelford,  108,  and  Report  on  Railw.  1839,  No.  517, 

p.  4- 

Since  writing  the  above,  the  late  case  of  Walker  v.  Bartlett,  18  C.  B.  845 ;  8.  c. 
86  £ng.  L.  &  £(|.  368,  has  come  to  hand,  where  a  blank  transfer  seems  to  be  re- 
garded as  perfectly  valid,  and  that  the  transfer  in  this  mode  docs  impose  upon  the 
vendee  the  duty  of  paying  calls  upon  the  shares,  while  they  remain  his  proi)erty. 
We  may  be  allowed  to  say,  that  this  result  of  the  English  decisions,  upon  this  sub- 
ject, is  not  altogether  without  gratification,  as  the  former  decisions  had  so  effectu- 
ally mystified  the  subject,  that  it  seemed  not  improbable  that  the  difficulty  of 
comprehending  them  might  very  likely  be  ultimately  found  with  ourselves,  rather 
than  at  the  door  of  the  eminent  jurists,  who  have  so  long  clung  to  the  now  ac- 
knowledged inconsistency  of  Humble  r.  Langston,  which  pertinacity  in  error,  'as 
a  general  thing,  is  far  more  uncommon  in  Westminster  Hall  than  with  courts  of 
less  experience. 

Men  of  the  learning  and  experience  of  the  English  judges,  generally  feel  that 
they  can  afford  to  acknowledge  their  common  share  of  human  fallibility,  without 
serious  prejudice. 

»  Hibblewhite  v.  M'Morine,  2  Railw.  C.  61 ;  8.  c.  6  M.  &  W.  200.  It  is  con- 
sidered that  two  or  more  several  owners  of  shares  may  join  in  one  deed  to  convey 
their  shares.  Wills  ».  Bridge,  4  Exch.  193;  Enthoven  ».  Hoyle,  18  C.  B.  878; 
8.  c.  9  Eng.  L.  &  Eq.  434.     See  anU,  §  34,  n.  2. 

•  128,  124 


126  TRANSFER   OP  SHARES.  CH.  VIII. 

upon  the  early  cases,  in  which  it  is  held  that  the  party  cannot 
effectually  execute  a  deed,  leaving  such  important  blanks  as  the 
name  of  the  grantee,  or  obligee,  while  it  is  considered  that  less  im- 
portant ones,  like  the  date,  etc.,  may  be  supplied,  after  the  execu- 
tion, by  permission  of  the  party  executing  the  same.  This  seems 
to  have  been  the  undoubted  rule  of  the  English  law,  from  the 
authorities  cited,  in  the  last  case. 

3.  But  it  seems  to  be  rather  technical  than  substantial,  and  to 
found  itself  either  in  the  policy  of  the  stamp  duties,  or  the  supe- 
rior force  and  sacredness  of  contracts  by  deed,  both  of  which  have 
little  importance  in  this  country.  And  the  prevailing  current 
of  American  authority,  and  the  practical  instincts,  and  busi- 
ness experience  and  sense  of  our  people,  are  undoubtedly  other- 
wise. 

4.  There  is  no  good  reason  why  one  should  not  be  as  much 
bound  by  a  deed  executed  in  blank,  and  filled  according  to  his  direc- 
tions, as  by  a  blank  acceptance  or  indorsement,  of  a  bill,  or  note, 
and  accordingly  we  find  a  large  number  of  decisions  of  the  Amer- 
ican courts  leading  in  that  direction  .^ 

«  Stahl  V.  Berger,  10  S.  &  R.  170 ;  Sigfried  v.  Levan,  6  id.  308 ;  Wiley  v. 
Moor,  17  id.  438 ;  Ogle  v.  Graham,  2  Penn.  132 ;  WooUey  v.  Constant,  4  Johns. 
54,  60;  Ex  imrte  Kerwin,  8  Cow.  118;  Boardman  v.  Gore  et  al.,  15  Mass.  331. 

And  the  following  certainly  incline  in  the  same  direction.  Smith  v.  Crocker, 
5  Mass.  538,  and  the  opinion  of  Parsons,  Ch.  J. ;  Hunt  «.  Adams,  6  id.  519 ; 
Warring  v.  WiUiams,  8  Pick.  326  ;  Adams  v.  Frye,  3  Met.  103  ;  Bank  of  Com- 
monwealth V.  Curry,  2  Dana,  142 ;  Bank  v.  McChord,  4  id.  191 ;  Johnson  r. 
Bank  of  the  United  States,  2  B.  Monroe,  310 ;  Camden  Bank  v.  Halls,  2  Green, 
683 ;  Duncan  v.  Hodges,  4  M'Cord,  239. 

In  the  London  &  Brighton  Railw.  Co.  v.  Fairclough,  2  Man.  &  Gr.  674 ;  8.  c. 
2  Railw.  C.  644,  the  deed  of  transfer  where  one  name  was  first  inserted,  as  trans- 
feree, and  subsequently  that  erased,  and  another  inserted,  and  the  deed  re- 
executed,  by  the  vendor,  was  held  void,  because  it  had  not  been  restamped. 
Post,  §§  239,  241. 

An  auctioneer,  who  sells  shares  at  public  auction  without  disclosing  the  name 
of  his  principal,  makes  himself  personally  responsible  for  the  fulfilment  of  the 
contract  of  sale.     Franklyn  v.  Lamond,  4  C.  B.  637  ;  Hodges  on  Railways,  119. 

But  where  one  borrowed  money,  and  deposited  certificates  of  railway  shares, 
with  blank  assignments  upon  them,  as  security,  and  the  blanks  were  not  filled  up 
till  the  shareholder  became  bankrupt,  it  was  held  that  the  depositary  had  a  lien 
upon  the  shares,  for  money  advanced  by  him,  or  paid  on  calls  upon  the  shares. 
Dobson  ex  parte,  2  Mont.  D.  &  De  G.  685.  And  railway  bonds  issued  with 
the  name  of  the  obligee  blank,  were  held  negotiable  in  that  form,  although  not 
in  terms  negotiable ;  and  that  any  holder  for  value,  before  the  blanks  were  filled, 
might  maintain  an  action  in  his  own  name  against  the  company.     Chapin  v.  Ver- 


§  36.  SALE  OP  SPURIOUS  SHARES.  127 

•SECTION  V. 
Sale  of  spurious  Shares. 

1.  Vendor,  who  acts  bon&  fide,  must  refund  4.  Ruk  of  the  stock-exchange,  made  ajler  the 
money.                                                       \  tale,  not  binding  upon  parties. 

8.  No  implied  tcarrauty  in  such  case,  which  n.  1.  Discussion  of  the  extent  of  implied 
will  entitle  the  vendee,  to  special  damage,  \  wtirranty. 

§  86.  1.  Where  one  employed  a  share-broker  to  sell  in  the  mar- 
ket what  purported  to  be  scrip  or  certificates  of  shares  in  a  pro- 
jected railway  company,  which  subsequently  proved  to  have  been 
forged,  and  the  broker  paid  the  price  at  which  he  sold  them  to  the 
defendant,  but  being  called  upon  by  the  purchaser  to  make  good 
the  loss,  repaid  the  money,  and  a  further  sum,  according  to  a 
resolution  of  the  committee  of  the  stock-exchange,  as  to  the  value 
of  genuine  shares  in  the  same  railway  company,  which  resolution 
was  passed  after  the  sale  of  the  spurious  shares  ;  the  defendant 
declining  to  pay  this  further  sum,  the  broker  brought  an  action, 
claiming  to  recover,  as  upon  a  warranty,  that  the  shares  were  gen- 
uine, with  a  count  for  money  paid.^ 

raont  &  Mass.  Railw.,  8  Gray,  675.     See,  also,  'White  r.  Vt.  &  Mass.  Railw., 
21  How.  (U.  S.)  575. 

'  Hodges,  4th  ed.  (1865).  This  writer  thus  defines  the  rule.  "If  a  share- 
broker,  directed  to  buy  shares,  buys  what  is  ordinarily  bought  and  sold  in  the 
stock-market  as  shares,  he  has  fulfilled  his  commission,  and  cannot  be  made  re- 
sponsible for  the  fraud  or  misconduct  of  parties,  who  may  have  issued  the  shares 
without  authority.  There  is  no  warranty  or  undertaking,  on  the  part  of  the 
broker  employed  to  buy  shares  or  scrip,  that  the  article  which  merely  passes 
through  his  hands  is  any  thing  more  than  what  it  purports  on  its  face  to  be,  and 
what  it  is  generally  understood  to  be  in  the  market.  Addison  on  Cont.  5th  ed. 
191 .  But  if  a  broker  sell  stock-shares  or  debentures  for  an  undisclosed  principal, 
and  sign  the  sold  note,  he  is  responsible  for  any  loss  sustained  by  the  purchaser, 
through  the  fraud  of  the  undisclosed  principal,  although  the  purchaser  knew 
that  he  was  dealing  with  a  broker.  Carr  v.  Royal  Exchange  Insurance  Co.,  6 
B.  &  S.  666;  s.  c.  nom.  Royal  Exchange  Insurance  Co.  v.  Moore,  11  Weekly 
Rep.  592. 

We  know  of  no  good  reason  why  the  vendor  of  shares  in  a  joint-stock  com- 
pany should  not  be  held  responsible  for  the  genuineness  of  the  article  the  same 
as  any  other  vendor.  It  may  not  follow  that  either  of  the  brokers  of  the  con- 
tracting parties  could  be  so  held,  since,  in  general,  they  act  merely  in  a  repre- 
sentative capacity.  But  the  ultimate  vendor  must  be  responsible  upon  an  implied 
warranty  to  that  extent.  And  as  was  held,  in  the  last  case  cited,  if  the  broker  with- 
holds the  name  of  his  principal  be  thereby  assumes  that  responsibility,  personally. 
•126 


128 


TRANSFER   OF  SHARES. 


CH.  VIII. 


*2.  Upon  the  latter  count  the  defendant  paid  into  court  the 
money  received  upon  the  original  sale,  with  interest. 

3.  It  was  held,  the  plaintiff  could  not  recover  upon  the  ground 
of  the  warranty,  there  being  no  promise,  express  or  implied,  that 
the  certificates  were  genuine  ;  and  that  under  the  other  count  he 
could  only  recover  the  money  paid  defendant. 

4.  It  was  also  held,  that  the  resolution  of  the  committee  of  the 
stock-exchange,  made  after  the  transaction  was  completed,  how- 
ever it  might  bind  the  members  of  that  body,  could  not  affect  the 
defendant.2 

♦SECTION  VI. 
Readiness  to  perform. —  Custom  and  Usage. 


1.  Vendor  must  be  ready  and  offer  to  convey, 

2.  Vendee  must  be  ready  to  pay  price. 
8.    General  custom  and  local  usage. 


4.  The  party  taking  the  initiative  must  pre- 
pare the  writings. 

n.  8.  Oral  evidence  to  explain  memoranda  of 
contract. 


§  37.  1.  The  obligation  resting  upon  the  vendor  of  railway 
shares  is  to  have,  at  the  time  specified  in  the  contract  for  delivery, 
a  good  title  to  the  requisite  number  of  shares,  and  to  manifest  his 
readiness  to  convey,  which  is  usually  done  by  tendering  the  proper 
conveyance.  But  this  is  not  necessary.  Any  other  mode  of  show- 
ing readiness  is  sufficient.^ 

2.  The  corresponding  obligations  upon  the  vendee  are  readi- 
ness to  receive  the  proper  conveyance,  at  the  specified  time  and 

•  Westropp  V.  Solomon,  8  C.  B.  345.  We  think  it  probable  that  the  cases, 
in  this  countrj',  would  be  regarded  as  favoring  the  view,  that  upon  a  sale  of  this 
kind  there  is  an  implied  warranty  that  the  article  is  what  it  purports  to  be,  and, 
consequently,  that  the  seller  is  liable  to  pay  its  value  in  the  market  at  the  time 
its  spuriousness  is  discovered. 

Post,  §  235.  It  would  seem  that  in  England  it  is  an  indictable  oifence  for 
persons  to  conspire  to  fabricate  shares,  in  addition  to  the  limited  number  of  shares 
of  which  a  company  consists,  in  order  to  sell  them  as  good  shares,  notwithstand- 
ing any  imperfection  in  the  original  formation  of  the  company.  Rex.  v.  Mott,  2 
C.  &  P.  521 ;  post,  §  37,  n.  3. 

'  Humble  v.  Langston,  7  M.  &  W.  517 ;  s.  C.  2  Railw.  C.  533 ;  Hannuic  r. 
Goldner,  11  M  &  W.  849 ;  Hare  v.  Waring,  3  M.  «&  W.  362 ;  Hibblewhite  v. 
M'Morine,  2  Railw.  C.  51.  In  Munn  r.  Bamum,  24  Barb.  283,  it  is  held  that 
mere  readiness  to  transfer  is  sufficient  in  such  cases,  and  that  an  actual  transfer 
is  never  requisite,  where  the  purchaser  declines  to  pay  the  price. 
126,  127 


§  37.      READINESS  TO  PERFORM.  —  CUSTOM  AND  USAGE.      129 

place,  and  to  pay  the  price,  and  it  would  seem  to  prepare  a  proper 
conveyance,  and  tender  the  same  for  execution,  upon  having  a  good 
title  made  out.* 

3.  But  the  incidents  of  such  contracts  are  liable  to  be  controlled 
by  general  and  local  customs,  and  usages  of  trade,  the  same  as 
other  similar  contracts.^    Hence  any  general  known  *  usage  of  those 

'  Lawrence  r.  Knowles,  5  Bing.  (N.  C.)  399 ;  Stephens  v.  Do  Medina,  4  Ad. 
&  EUis  (n.  8.),  422 ;  Bowlby  c.  Bell,  4  Railw.  C.  692. 

'  Stewart  r.  Cauty,  2  Railw.  C.  616 ;  8  M.  &  W.  160.  And  one  who  em- 
ploys a  share-broker,  at  a  particular  place,  to  purchase  shares,  is  bound  by  a 
usage,  affecting  the  broker,  at  that  particular  place.  As  where  the  plaintiff,  a 
share-broker  in  Leeds,  bought  for  defendant  ten  railway  shares  to  be  paid  for 
on  delivery.  The  defendant  not  being  ready  to  pay  the  money,  the  vendor 
made  a  resale,  at  a  less  price,  and  called  upon  the  plaintiff  for  the  difference, 
which  he  paid  without  communicating  with  defendant,  all  which  was  done  ac- 
cording to  the  custom  of  the  Leeds  stock-exchange.  It  was  held  the  plaintiff 
might  recover  of  defendant  the  difference,  in  an  action  for  money  paid.  Pol- 
lock r.  Stables,  5  Railw.  C.  352 ;  8.  c.  12  Q.  B.  765. 

And  where  shares  had  been  purchased  by  a  stock-broker,  upon  which  a  call 
had  been  made,  but  not  then  due,  by  the  rules  of  the  stock-exchange  it  was  the 
duty  of  the  vendee  to  pay  the  call,  the  vendor  having  paid  it,  to  enable  him  to 
convey,  the  broker  paid  the  amount  to  him,  and  it  was  held  he  might  recover  it 
of  the  vendee,  as  money  paid  for  his  use.  Bayley  r.  Wilkins,  7  C  B.  886. 
And  it  would  seem  the  party  is  bound  by  such  usage,  though  not  cognizant  of 
it.  Parke  and  Bol/e,  BB.,  in  Bayliffe  v.  Butterworth,  1  Exch.  426 ;  8.  c.  6  Railw. 
C.  283 ;  Sutton  v.  Tatham,  10  A.  &  E.  27. 

And  where  the  broker  could  not  obtain  the  certificate  of  shares  for  some 
months,  on  account  of  the  delay  in  having  them  registered  by  the  company,  and 
in  the  mean  time  a  call  was  made  which  he  paid,  the  person  for  whom  he  pur- 
chased, having,  from  time  to  time,  urged  the  forwarding  of  the  scrip  without 
delay,  it  was  held  that  he  could  not  repudiate  the  contract,  and  recover  the 
money  advanced  to  the  broker  to  pay  the  price  of  the  purchase.  McEwen  v. 
Woods,  11  Q.  B.  13;  6  Railw.  C.  335. 

And  where  the  defendant  gave  the  plaintiff,  a  broker  on  the  stock-exchange,  an 
order  to  purchase  for  him  fifty  shares  in  a  foreign  railway  company,  at  a  time 
when  no  shares  of  the  company  were  in  the  market,  or  had  in  fact  issued,  but> 
letters  of  allotment  were  then,  according  to  the  evidence  of  persons  on  the  stock- 
exchange,  commonly  bought  and  sold  as  shares,  and  the  plaintiff  bought  for  the 
defendant  a  letter  of  allotment  of  fifty  shares,  it  was  held  that  a  jury  might  well 
find  that  this  was  a  good  execution  of  the  order.  Mitchell  ».  Newhall,  15  M.  & 
W.  308 ;  8.  c.  4  Railw.  C.  300. 

And  where  the  broker  bought  scrip  certificates,  which  were  sold  in  the  market, 
as  "  Kentish  Coast  Railway  Scrip,"  and  were  signed  by  the  secretary  of  the 
company,  but  which  were  afterwards  repudiated  by  the  directors,  as  having  been 
issued  by  the  secretary,  without  authority,  in  an  action  to  recover  back  from  the 
broker  the  price  paid  him  by  the  plaintiff  for  the  scrip,  and  his  commissions,  on 

9  •128 


130  TRANSFER  OF  SHARES.  CH.  Vin. 

negotiating  similar  business,  and  which  may  be  fairly  presumed  to 
have  been  known  to  the  parties,  or  which  *  ought  to  have  been,  and 

the  ground  of  its  not  being  genuine,  it  was  held  that  the  proper  question  for  the 
jury  was,  whether  what  the  plaintiff  intended  to  buy  was  not  that  which  went 
in  the  market  as  "  Kentish  Coast  Railway  Scrip,"  there  being  no  other  form  of 
that  scrip  in  the  market  at  the  time.  Lamert  v.  Heath,  15  M.  &  W.  486 ;  s.  c. 
4Railw.  C.  302;  Aiite,  §  36. 

The  remarks  of  Lord  Campbell,  Ch.  J.,  in  the  very  late  case  of  Humfrey  v. 
Dale,  7  El.  &  Bl.  266,  20  Law  Rep.  227,  in  regard  to  the  necessity  of  relax- 
ing the  rule  of  the  admissibility  of  oral  evidence  to  explain  the  import  of  com- 
mercial terms  and  memoranda  in  written  contracts  between  merchants  and 
business  men,  are  certainly  worthy  of  his  lordship's  eminent  reputation  for  wis- 
dom and  learning :  — 

,  "  The  only  remaining  question  is,  having  stated  a  purchase  for  a  third  person 
as  principal,  is  there  evidence  on  which  they  themselves  can  be  made  liable? 
Now  neither  collateral  evidence,  nor  the  evidence  of  a  usage  of  trade,  is  receiv- 
able to  prove  any  thing  which  contradicts  the  terms  of  a  written  contract ;  but 
subject  to  this  condition  both  may  be  received  for  certain  purposes.  Here  the 
plaintiff  did  not  seek,  by  the  evidence  of  usage,  to  contradict  what  the  tenor  of 
the  note  primarily  imports ;  namely,  that  this  was  a  contract  which  the  defendants 
made  as  brokers.  The  evidence,  indeed,  is  based  on  this.  But  the  plain- 
tiff seeks  to  show  that,  according  to  the  usage  of  the  trade,  and  as  those  con- 
cerned in  the  trade  understand  the  words  used,  they  imported  something  more ; 
namely,  that  if  the  buying  broker  did  not  disclose  the  name  of  his  principal,  it 
might  become  a  contract  with  him,  if  the  seller  pleased.  The  principle  on 
which  evidence  is  admissible  is,  that  the  parties  have  not  set  down  on  paper  the 
whole  of  their  contract  in  all  its  terms,  but  those  only  which  were  necessary  to 
be  determined  in  the  particular  case  by  specific  agreement,  and  which  of  course 
might  vary  infinitely,  leaving  to  implication  and  tacit  understanding  all  those 
general  and  unvarying  incidents  which  an  uniform  usage  would  annex,  and  ac- 
cording to  which  they  must  in  reason  be  understood  to  contract,  unless  they  ex- 
pressly exclude  them.  To  fall  within  the  exception,  therefore,  of  repugnancy, 
the  incident  must  be  such  as,  if  expressed  in  the  written  contract,  would  make 
it  insensible  or  inconsistent.  Brown  v.  Byrne,  3  Ell.  &  Bl.  703.  [After  allud- 
ing to  several  cases,  especially  Trueman  v.  Loder,  11  Ad.  &  Ell.  589,  in  which 
case  is  found  a  dictum  adverse  to  admissibility  of  this  evidence,  the  learned  judge 
continued :]  We  may  refer  to  Hodson  v.  Davies,  2  Camp.  530,  not  as  a  legal 
decision  opposed  to  Trueman  r.  Loder,  —  for  Lord  JDenman,  in  his  judgment  in 
the  latter  case,  showed  that  it  could  not  be  supposed  to  carrj-  with  it  the  weight 
of  Lord  Ellenhorougli's  decision,  —  but  because  both  cases,  we  think,  disclose 
how  entirely  the  minds  of  lawyers  are  under  a  different  bias  from  that  which, 
in  spite  of  them,  will  always  influence  the  practice  of  traders  which  creates  the 
usage  of  trade.  Lawyers  desire  certainty,  and  would  have  a  written  contract 
express  all  its  terms,  and  desire  that  no  parol  evidence  beyond  it  should  be  re- 
ceivable ;  but  merchants  and  traders,  with  a  multiplicity  of  contracts  preparing 
on  them,  and  meeting  each  other  daily,  desire  to  write  little,  and  leave  imwrit- 
ten  what  they  take  for  granted  in  every  contract.  It  ik  the  business  of  courts 
•  129 


§  37.  READINESS  TO   PERFORM.  —  CUSTOM   AND   USAGE.  131 

any  local  custom,  or  usage  of  trade,  which  was  in  fact  known  to 
both  parties,  is  regarded  as  if  incorporated  into  the  contract,  the 
parties  being  presumed  to  have  contracted  with  reference  to  it.' 
But  it  may  be  questionable,  perhaps,  whether  the  custom  in 
regard  to  sales  of  stock,  in  this  country,  would  require  the  pur- 
chaser to  be  at  the  sole  expense  of  preparing  the  proper  con- 
vey ance. 

4.  It  is  safe,  perhaps,  to  say,  that  the  party  tendering  a  convey- 
ance, or  he  who  demands  it,  in  practice,  ordinarily  causes  the  in- 
strument, required  to  be  *  executed,  to  be  prepared  in  the  one  case 
and  executed  in  the  other.  But  less  will  often  suffice,  where  the 
other  party  refuses  to  proceed.* 

reasonably  to  shape  these  rules  of  evidence  so  as  to  make  them  suitable  to  the 
habits  of  mankind,  and  such  as  are  not  likely  to  exclude  the  actual  facts  of  the 
dealings  between  parties,  when  they  are  to  determine  on  the  controversies  which 
grow  out  of  them.  The  rule  to  enter  a  nonsuit  must  be  discharged."  See 
Taylor  v.  Stray,  29  Law  Times,  95 ;  s.  c.  2  C.  B.  N.  S.  175. 

*  Walford,  262,  note,  where  it  is  said,  "  It  would  seem,  that  if  the  vendor 
fails  to  make  out  a  title,  this  dispenses  with  a  tender  of  conveyance."  But  if 
stock  is  to  be  delivered  on  demand,  it  is  necessary  to  show  an  actual  request  to 
deliver,  in  order  to  sustain  an  action  for  non-delivery.  Green  v.  Murray,  6  Jur. 
728.  Where  the  contract  is  to  deliver  stock  in  a  reasonable  time,  or  no  time 
being  specified,  which  the  law  regards  as  in  a  reasonable  time,  or  on  or  before 
a  day  named,  it  is  presumed  each  party  is  entitled  to  the  whole  time  in  which 
to  perform.  Stewart  v.  Cauty,  2  Railw.  C.  616 ;  8.  c.  8  M.  &  W.  160.  It 
seems  that  where  the  deed  of  settlement  required  the  consent  of  the  directors 
to  the  validity  of  the  transfer  of  shares,  it  is  incumbent  upon  the  vendor  to 
obtain  such  consent ;  and  where  the  transfer  was  duly  made,  executed,  and  de- 
livered, and  the  money  for  the  price  paid,  but  the  directors  refused  to  give  their 
assent,  it  was  held  the  purchaser  might  recover  back  the  money  paid,  and  that 
the  return  of  the  transfer  was  collateral  to  the  contract  of  purchase,  and  not  a 
condition  precedent  to  the  plaintiff's  right  to  recover.  Wilkinson  v.  Lloyd,  7 
Q.  B.  27. 

And  where  the  charter  of  the  company,  or  the  statute,  prohibits  the  transfer 
of  the  shares  while  calls  remain  due,  it  has  been  held  that  a  deed  of  transfer  made, 
while  calls  remained  unpaid,  was  altogether  null  and  void,  so  that  the  company 
may  refuse  to  register  such  a  transfer,  although  the  calls  have  been  subsequently 
paid.  It  is  said  it  would  be  necessary  to  re-execute  the  deed,  afler  the  payment 
of  the  calls,  before  the  company  could  be  compelled  to  register  it.  Hodges,  121, 
122.  But  it  has  been  said,  that  if  a  deed  be  delivered  as  an  escrow  in  such 
case,  to  take  effect  when  the  calls  are  paid,  it  may  be  good.  Patteson,  J.,  in 
Hall  c.  Norfolk  Estuary  Co.,  7  Railw.  Cas.  608 ;  8.  c.  8  Eng.  L.  &  Eq.  361. 

•130 


132  TRANSFER  OP  SHARES.  CH.  Vin. 

SECTION    VII. 
Damages.  —  Specific  Performance. 

Ij  Damages,  difference  bettoeen  contract  price  I  2.  Equity  vM  decree  specific  performance  of 
and  price  at  time  of  delivery,  \  contract  far  sale  of  shares. 

§  38.  1.  The  damages  which  either  party  is  entitled  to  recover, 
is  the  difference  between  the  contract  price  and  the  market  price, 
at  the  time  for  delivery,  or,  in  some  cases,  a  reasonable  time  after, 
which  is  allowed  either  party  for  resale  or  repurchase.^ 

*  2.  And  a  court  of  equity  will  decree  a  specific  performance  of 
a  contract  to  transfer  railway  shares,  but  not  for  the  transfer  of 
stock  in  the  funds,  as  any  one  may  always  obtain  that  in  the 
market,  but  railway  stock  is  not  always  obtainable.^    This  sub- 

»  Bamed  r.  Hamilton,  2  Railw.  C.  624;  Humble  r.  Mitchell,  11  Ad.  &  El. 
206 ;  8.  "c.  2  Eailw.  C.  70 ;  Shaw  v.  Holland,  15  M.  &  W.  136.  But  the  pur- 
chaser is  not  entitled  to  recover  any  advance  in  the  market  price  of  such  shares, 
after  a  reasonable  time  for  repurchase.  Tempest  r.  Kilner,  2  C.  B.  300 ;  s.  c.  3 
C.  B.  249.  See  also  Pott  r.  Flather,  5  Railw.  C.  85 ;  Williams  v.  Archer,  id. 
289 ;  S.  c.  5  C.  B.  318.  But  a  broker  is  not  entitled  to  commissions  unless  he 
complete  the  sale,  but  may  be  entitled  to  reimbursement  of  actual  expenses. 
Durkee  r.  Vermont  Central  Railway,  29  Vt.  127.  In  a  recent  case  in  the 
CoDunon  Pleas,  Loder  v.  Kekule,  3  C.  B.  N.  S.  128 ;  s.  c.  30  Law  Times,  64, 
it  was  decided,  in  regard  to  the  subject  of  damages  for  breach  of  contract, 
by  delivery  of  an  inferior  article,  that  if  the  article  was  one  that  could  be 
immediately  sold  in  the  market,  the  rule  was,  the  diflference  between  the  market 
value  of  the  article  delivered  and  that  contracted  for.  But  where  the  article 
cannot  b«  immediately  resold,  as  where  the  resale  is  delayed  by  the  defendant, 
the  measure  of  damages  is  the  diflFerence  between  the  value  of  the  article  con- 
tracted for,  at  the  time  and  place  of  delivery,  and  the  amount  made  by  the 
resale,  within  a  reasonable  time  of  the  delivery  of  the  article.  See  also  Rand 
V.  White  Mountain  Railw.  40  N.  H.  79.  It  is  here  said  that  such  a  contract 
creates  no  debt,  attachable  by  process  of  foreign  attachment,  but  is  merely  a 
claim  for  unliquidated  damages.  And  see  Hager  ».  Reed,  11  Ohio  N.  S.  626, 
where  the  general  question  of  the  enforcement  of  contracts  to  transfer  stock  is 
considered,  and  the  effect  of  judgment  for  the  price  without  an  actual  transfer 
or  an  order  of  court  therefor. 

•  Duncuft  V.  Albrecht,  12  Simons,  189;  Shaw  r.  Fisher,  2  De  G.  &  S.  11 ; 
8.  c.  5  Railw.  C.  461.  Leach  p.  Fobes,  11  Gray  506.  There  has  been  the 
most  controversy  in  the  English  courts  of  equity  as  bearing  upon  the  question  of 
decreeing  specific  performance  of  contracts  to  transfer  shares  in  joint-stock 
companies,  upon  the  point  of  the  sufficiency  of  the  proof.  See  Parish  p.  Parish, 
32  Beav.  207  ;  Bermingham  r.  Sheridan,  33  Beav.  660;'8.  c.  10  Jur.  N.  S.  415. 

♦181 


§  38.  DAMAGES.  —  8PECTFIC  PERFORMANCE.  133 

ject  has  recently  been  discussed  in  the  English  Court  of  Chancery 
Appeal,'  and  the  same  rule  declared,  which  is  stated  above.  But 
ill  that  case  the  plaintiff  failed  to  obtain  a  decree,  for  the  reason 
that  he  had  already  conveyed  the  stock  to  the  defendant's  vendee, 
in  ignorance  that  the  defendant  was  the  real  purchaser ;  and  the 
matter  having  lain  by  for  a  whole  year,  it  now  seemed  impossible 
to  say  that  the  plaintiff  had  made,  or  could  make,  good  title  to  the 
stock,  which  is  always  an  insuperable  barrier  to  a  decree  for  spe- 
cific performance.  The  latest  case  upon  the  subject  in  the  English 
Court  of  Chancery  Appeal  holds,  that  an  agreement  to  accept  a 
transfer  of  railway  shares,  on  which  nothing  had  been  paid,  was 
not  nudum  pactum^  but  a  contract  which  may  be  specifically  en- 
forced in  equity.  Lord  Chelmsford,  chancellor,  in  delivering  his 
judgment,  quotes  with  approbation  the  words  of  the  Vice-Chan- 
cellor  of  England,  in  Duncuft  v.  Albrecht.  "  There  is  not  any  kind 
of  analogy,"  said  that  learned  judge,  "  between  a  quantity  of  three 
per  cent,  or  any  other  stock  of  that  description,  (which  is  always 
to  be  had  by  any  person  who  chooses  to  apply  for  it  in  the  mar- 
ket,) and  a  certain  number  of  railway  shares  of  a  particular  de- 
scription, which  railway  shares  are  limited  in  number,  and  which 
are  not  always  to  be  had  in  the  market."  We  regard  this  as  the 
latest  authoritative  declaration  of  the  English  equity  courts  upon 
the  subject.*  So  it  was  held,  that  a  court  of  equity  will  decree 
a  specific  performance  against  a  railway  company  of  a  contract  to 
take  land  and  pay  a  stipulated  price.^ 

'  Shaw  r.  Fisher,  6  De  G.  M.  &  G.  596 ;  Sullivan  r.  Tuck,  1  Md.  Ch.  Dec. 
59,  id.  112;  McGowin  r.  Remington,  12  Penn.  St.  56.  See,  also,  upon  the 
subject  of  specific  performance  in  courts  of  equity,  Adams,  Eq.  (ed.  1859), 
77-91,  and  cases  cited;  Carpenter  v.  Ins.  Co.,  4  Sandf.  Ch.  408;  Lowry  v. 
Muldrow,  8  Rich.  Eq.  241. 

*  Clieale  r.  Kenward,  3  De  G.  &  J.  27.     There  has  been  a  similar  decision 
by  the  Supreme  Court  of  Massachusetts.     Leach  v.  Fobes,  11  Gray,  506;  8.  p.  f 
Todd  V.  Tall,  7  Allen,  371. 

*  Inge  r.  Birmingham  W.  &  S.  V.  Railway  Co.,  3  De  G.  M.  &  G.  658 ;  8.  C. 
23  Eng.  L.  &  Eq.  601 ;  post,  §  213.  So  also  in  their  favor.  Old  Colony  Railw. 
c.  Evans,  6  Gray,  25. 


134 


TRANSFER  OF  SHARES. 


CH.  vni. 


•SECTION  VIII 


Specific  Performance. 


1.  Specific  iperformanct  decreed  against  the 

vendee. 

2.  This  uxu  dotted  in  the  early  cases. 


3.  Owner  of  original  shares  may  transfer 

them. 

4.  Will  not  decree  specific  performance  where 
not  in  the  power  of  the  party. 


§  39.  1.  It  is  considered,  under  the  English  statutes,  that  the 
purchaser  of  shares  in  a  railway  is  bound  to  execute  the  assign- 
ment on  his  part,  procure  himself  to  be  registered,  pay  all  calls 
intervening  the  assignment  and  the  registration  of  his  name  as 
a  shareholder,  and  indemnify  the  seller  against  future  calls,  and 
upon  a  bill  filed  for  that  purpose,  it  was  so  decreed.^ 

2.  But  in  some  of  the  earlier  cases,  very  similar  in  principle, 
the  Court  of  Chancery  declined  to  interfere,  and  the  opinion  is 
very  distinctly  intimated,  that  the  law  implied  no  undertaking  on 
the  part  of  the  purchaser  of  railway  shares,  to  assume  the  position 
and  burdens  of  the  seller.^ 

*  3.  In  the  case  of  Jackson  v.  Cocker  a  query  is  started  by  the 

»  Wynne  v.  Price,  3  De  G.  &  S.  310 ;  s.  c.  5  Railw.  C.  465 ;  Shaw  v.  Fisher, 
2  De  G.  &  S.  11 ;  s.  c.  5  De  G.,  M.  &  G.  596.  These  cases  were  decided  by 
V.  C.  Knight  Bruce,  and  are  obviously  somewhat  at  variance  with  the  principles 
assumed  in  Humble  v.  Langston,  7  M.  &  W.  517.  The  learned  judge  here  seems 
to  have  felt  a  just  indignation  that  any  defence  should  have  been  attempted  in 
such  a  case.  "The  defence,"  said  he,  "was  without  apology  or  excuse."  And 
this  same  learned  judge,  in  the  case  of  Jacques  v.  Chambers,  2  Coll  C.  C. 
435 ;  4  Railw.  C.  499,  held,  that  where  a  testator,  at  the  time  of  his  death, 
was  possessed  of  fifty  original  shares,  and  seventy  purchased  shares  in  a  railway, 
calls  upon  which  had  not  all  been  made,  by  his  will  gave  thirty  whole  shares  in 
such  railway  to  trustees,  for  the  benefit  of  a  married  woman  for  life,  without 
power  of  anticipation,  and  thirty  shares  to  B.,  and  twenty-five  original  and  five 
purchased  shares  having  been  allotted  by  the  executors  to  each  of  the  legatees, 
the  testator's  estate  was  liable  to  pay  the  calls  upon  the  shares,  and  a  sum  to 
pay  the  unpaid  calls  was  ordered  to  be  placed  to  a  separate  account,  and  laid 
out,  and  the  income  meanwhile  paid  to  those  entitled  to  the  general  residue. 
This  case  is  decided  upon  the  authority  of  Blount  v.  Hipkins,  7  Simons,  43,  51, 
which  it  is  here  said,  "as  it  regards  both  sets  of  shares,  cannot  be  substantially 
distinguished  from  Jacques  v.  Chambers."  See  also  Duncuft  ».  Albrecht,  12 
Simons,  189.  But,  as  before  said,  it  is  well  settled,  that  courts  of  equity  in 
England  will  not  decree  specific  performance  of  a  contract  to  sell  public  stocks, 
which  may  always  be  had  in  the  market.     Nulbrown  v.  Thornton,  10  Vesey,  159. 

*  Jackson  v.  Cocker,  2  Railw.  C.  368 ;  s.  c.  4  Beavan,  59. 

♦132,  133 


§  39.  SPECIFIC  PERFORMANCE.  136 

Master  of  the  Rolls,  upon  the  authority  of  Josephs  v.  Pebrer,  3  B. 
&  C.  639,  whether  a  contract  by  which  the  original  subscribers 
of  shares  in  a  railway  stipulate  to  be  relieved  from  their  under- 
taking, and  to  substitute  another  party  in  their  place,  is  to  be  re- 
garded as  legal  ?  But  the  case  referred  to  was  decided  upon  the 
ground  that  the  concern  then  in  question  was  illegal  in  itself, 
within  the  English  statute,^  as  having  transferable  shares,  and 
affecting  to  act  as  a  body  corporate,  without  authority  by  charter 
or  act  of  parliament. 

4.  The  Court  of  Chancery  will  not  decree  specific  performance 
against  a  railway  company  which  promised  to  allot  shares  to  the 
plaintiff,  especially  where  it  appears  such  shares  have  been  given 
to  others.*  A  court  of  equity  will  never,  it  seems,  decree  spe- 
cific performance  against  a  party,  where  it  is  not  in  his  power  to 
perform,  although  such  incapacity  be  the  result  of  his  own  fault.  _ 
But  will,  in  such  case,  leave  the  other  party  to  his  remedy  at  law, 
by  way  of  damages,  which  is  all  the  redress  that  remains.^ 

'  €  G«o.  1.  c.  18. 

*  Columbine  r.  Chichester,  2  Phillips,  C.  C.  27. 

*  Greenaway  v.  Adams,  12  Vesey,  395,  400;  Varick  v.  Edwards,  11  Paige, 
289.  In  the  case  of  Miller  v.  The  Illinois  Central  Railw.  &  Robert  &  George 
Schuyler,  24  Barb.  312,  it  was  held,  that  where  the  company,  by  their  treasurer, 
gave  a  receipt  to  the  Schuylers  for  $7,600,  to  be  repaid  with  interest  on  demand, 
or  received  in  payment  of  ten  dollars  on  a  share  of  stock,  to  be  issued  to  them 
or  their  assigns,  when  the  directors  shall  authorize  the  issue  of  more  stock,  this 
only  gave  the  holder  of  such  receipt  an  option  to  take  the  shares  or  the  money, 
and  that  he  could  not  claim  to  be  a  holder  of  stock,  or  to  have  any  right  thereto, 
until  he  had  given  notice  of  his  election  to  take  stock.  And  where  the  holder 
of  this  receipt  had  assigned  it  as  collateral  security  to  the  plaintiff,  with  an  agree- 
ment that  he  should  have  300  of  the  shares,  but  no  notice  of  any  interest  of  plain- 
tiff had  been  given  the  company,  and  the  company  made  a  new  issue  beyond 
what  was  necessary,  and  after  the  7,500  shares  had  been  issued  to  Robert 
Schuyler,  and  the  300  shares  set  apart  by  him  for  plaintiff,  but  the  300  shares 
were  not  transferred  to  plaintiff  till  after  tlie  second  new  issue,  nor  had  the 
plaintiff  knowledge  of  it  at  the  time  he  accepted  the  300  shares  :  It  was  held  that 
the  plaintiff  had  no  claim  against  the  company  to  allot  him  the  proportion  of  the 
new  issue  of  shares,  which  the  300  shares  were  entitled  to  receive,  they  having 
no  notice  of  his  equitable  ownership  of  the  300  shares.  And  that  although  cer- 
tain information  came  to  the  president,  while  acting  in  some  other  capacity,  that 
some  contract  had  been  made,  by  which  the  Schuylers  were  to  transfer  a  portion 
of  the  stock  to  the  plaintiff,  yet  as  this  was  not  given  or  understowl  as  notice  to 
the  company,  or  to  him  as  president,  it  could  not  affect  the  company.  And  that 
the  surrender  of  the  receipt  with  certain  indorsements,  showing  plaintiff's  interest, 
after  the  resolution  to  issue  the  stock,  fixing  the  mode  of  distribution,  could  not 
bind  them  to  allot  shares  to  the  plaintiff  upon  the  300  shares. 


186 


TRANSFER  OF  SHARES. 


CH.  vni. 


•SECTION  IX 


I^stee  entitled  to  Indemnity  against  future  Calls. 


1.  Trustee  entitled  to  indemnity,  on  general 

principles. 

2.  English  courts  hesitated  in  regard  to  rail- 

wag  shares. 
8,  4.    Cases  remewed. 


5.  Mortgagees  liable,  as  stockholders,  for  the 

debts  of  the  company. 

6.  The  ostensible  owner  must  respond  to  all 

responsibilities. 

7.  Executors  responsible  personally. 


§  40.  1.  It  seems  to  be  regarded  as  the  general  rule  of  chancery 
law,  that  the  trustee  of  property  is  entitled  to  indemnity,  for  ex- 
penses bond  fide  incurred,  in  the  management  and  preservation  of 
the  trust-fund,  or  estate,  either  out  of  the  property,  as  a  personal 
duty,  from  the  cestui  que  trust  in  most  cases.^ 

2.  We  apprehend  there  is  no  good  reason  why  this  principle 
should  not  receive  a  general  application  to  the  case  of  shares  in  a 
railway  company,  held  as  security  for  a  ^ebt,  by  way  of  mortgage 
or  pledge.  And  it  would  seem,  that  no  serious  question  could  ever 
have  arisen  upon  the  subject,  but  for  the  strange  inconsistencies 
into  which  the  English  courts  and  judges  have  been  led,  by  at- 
tempting, for  so  long  a  period,  to  maintain  the  doctrine  laid  down 
in  Humble  v.  Langston,^  but  which  is  now  effectually  overruled, 
in  the  tribunal  of  last  resort.^ 

3.  But  we  shall  refer  briefly  to  the  decisions,  upon  this  point,  in 
regard  to  railway  shares  and  stock,  in  other  similar  companies. 
*  It  was  held,  by  Wigram,  Vice-Chancellor,*  that  where  there  was 

'  Murray  v.  De  Rottenham,  6  Johns.  Ch.  62,  67 ;  Green  v.  Winter,  1  Johns. 
Ch.  27 ;  Watts  v.  Watts,  2  M'Cord,  Ch.  82 ;  Myers  v.  Myers,  2  M'Cord,  Ch. 
264 ;  McMillan  v.  Scott,  1  Monroe,  161 ;  Morton  v.  Barrett,  22  Maine,  257 ; 
Draper  v.  Gordon,  4  Sandf.  Ch.  210;  Egbert  v.  Brooks,  3  Harring.  110; 
Methodist  Episcopal  Church  v.  Jacques,  1  Johns.  Ch.  450 ;  Storj'  on  Bailments, 
§§  306,  306  a,  367,  358. 

*  7  M.  &  W.  517. 

3  Walker  v.  Bartlett,  18  C.  B.  845. 

*  Phene  v.  Gillan,  6  Hare,  1.  In  this  case,  it  was  held,  that  where  the  mort- 
gagor is  entitled  to  claim  a  retransfer  of  shares,  standing  on  the  register  of  shares, 
in  the  name  of  the  mortgagee,  the  debt  being  paid  off,  he  is  entitled  to  take  pro- 
ceedings to  compel  such  retransfer  on  the  books  of  the  company,  in  the  name  of 
the  mortgagee,  giving  the  proper  indemnity  for  costs.  And  either  the  company 
or  the  directors,  who  have  prevented  the  shares  from  being  transferred,  are 
proper  parties  to  the  bill,  and,  it  would  seem,  necessary  parties. 

•  134,  135 


§  40.  INDEMNITY   AGAINST   FUTURE  CALLS.  137 

a  contract  for  retransfer,  claimed  by  the  mortgagor,  or  found,  in 
express  terms,  in  the  contract  of  pledge,  or  mortgage,  or  inferable 
from  circumstances,  this  was  sufficient  ground  for  implying  a 
contract,  by  the  mortgagor,  to  indemnify  the  mortgagee,  against 
liability  to  the  creditors  of  the  company,  for  debts  incurred,  while 
his  name  remained  upon  the  register  of  shares,  as  owner,  and  a 
decree  was  made  accordingly. 

4.  The  same  learned  judge,  in  the  same  case,  considered,  that 
where  the  mortgage  was  made  simply  as  an  absolute  transfer, 
subject  to  redemption,  and  notbing  had  passed,  binding  the  mort- 
gagor to  take  a  retransfer  to  the  shares,  the  mortgagor  was  not 
bound  to  indemnify  the  mortgagee  against  debts  incurred  after  the 
transfer  made  in  the  mortgage,  and  before  the  mortgage  debt  was 
paid  off.  But  it  is  here  maintained,  that  the  mortgagee  has  not  in 
such  case  any  right,  at  law,  against  the  mortgagor,  as  to  payments, 
which  he  has  been  compelled  to  make,  while  he  remained  the 
ostensible  owner  of  the  shares,  even  where  a  contract  for  retrans- 
fer is  shown.  But  a  late  English  writer  upon  this  subject  ^  seems 
to  incline  to  the  opinion  that,  in  such  case,  an  action  of  trespass 
on  the  case  might  be  maintained,  against  the  purchaser  of  shares, 
who  fails  to  cause  his  name  to  be  registered  as  owner,  or  to  in- 
demnify the  seller  against  liabilities  after  the  sale.  And  the  same 
principle  will  apply  to  the  mortgagee,  after  the  debt  is  paid.  But 
all  these  refinements  must  now,  we  think,  be  regarded  as  effectu- 
ally abrogated,  by  the  virtual  abandonment,  by  the  English  courts, 
of  the  rule  laid  down  in  Humble  v.  Langston,  and  the  recognition 
of  the  contrary  doctrine. 

5.  It  has  been  held,  in  this  country,  that,  where  B.  being  in- 
debted, transferred  shares  to  his  creditors,  as  security,  with  the 
power  of  sale,  and  upon  condition  that  the  shares  should  be  *  re- 
turned or  accounted  for,  whenever  the  debt  should  be  paid,  the 
debt  being  paid  off,  and  an  informal  power  of  retransfer  given  the' 
mortgagee,  and  subsequently  a  more  formal  one,  the  mortgagees 
were  to  be  regarded  as  stockholders,  until  the  actual  retransfer  of 
the  shares,  and  as  such  liable  to  the  creditors  of  the  company, 
under  the  charter.^    As  the  case  of  Humble  v.  Langston  is  not  in 

»  Hodges,  122. 

•  Adderly  v.  Storm  &  Bailey,  6  Hill,  624.  Branson,  J.,  argiies  the  liability 
of  the  mortgagees  to  the  creditors  of  the  company,  while  their  names  remained 
on  the  books  of  the  company,  as  absolute  shareholders,  on  the  ground  that  "they 

♦  136 


138  TRANSFER  OP  SHARES.  CH.  VHI. 

terms  overruled,  although  it  is  in  principle  we  think,  we  here  in- 
sert the  substance  of  the  opinion  of  the  court  in  Walker  v.  Bart- 
lett,  as  showing  the  present  state  of  the  English  law  on  the 
subjects 

might  receive  dividends,  vote  at  elections,  and  enjoy  all  the  rights  pertaining  to 
the  ownership  of  the  property,  and  with  the  privileges  they  must  take  the  bur- 
dens of  a  stockholder."  A  query  is  here  started  whether  a  retransfer  to  the  mort- 
gagor of  the  shares,  upon  the  payment  of  the  debt,  might  not  release  the 
mortgagee.  "  The  assignment,  as  between  the  parties  to  it,  would  have  passed 
the  legal  interest  in  the  stock."  But  are  the  creditors  of  the  company  bound  to 
look  beyond  the  register  of  shares  ?  Rosevelt  v.  Brown,  1  Keman,  148 ;  Wor- 
rall  V.  Judson,  5  Barb.  210;  Stanley  v.  Stanley,  13  Shepley,  191.  In  Adderly 
V.  Storm,  supra  it  is  intimated,  that  a  fraudulent  transfer  of  stock  by  a  solvent 
owner  to  an  insolvent  party,  for  the  purpose  of  avoiding  liability  to  the  creditors 
of  the  company,  might  not  avail  the  party,  even  at  law. 

'  "  The  case  of  W}-nne  v.  Price,  3  De  G.  &  S.  310,  shows  that  in  equity  the 
plaintiff  would  be  entitled,  under  the  circumstances  of  the  present  case,  to  in- 
demnity ;  but  it  was  contended  for  the  defendant,  that,  however  the  case  might 
be  in  equity,  there  was  no  contract  for  indemnity  to  be  implied  by  law;  and 
the  case  of  Humble  v.  Langston,  7  M.  &  W.  517,  was  relied  upon  as  a  direct 
authority  against  the  plaintiff  upon  this  point ;  and  the  Court  of  Common  Pleas, 
in  the  judgment  appealed  against,  considered  that  it  was  bound  by  that  decision, 
though  it  was  intimated  that  but  for  that  express  decision  their  own  judgment 
might  have  been  different.  It  must  be  admitted  that,  in  principle,  no  substantial 
difference  can  be  taken  between  that  case  and  the  present,  except  this,  that  in 
Humble  v.  Langston,  the  plaintiff  claimed  to  be  indemnified  by  the  defendant 
against  all  future  calls,  even  though  made  after  the  defendant  had  himself  trans- 
ferred the  shares  to  other  persons ;  and  the  Court  of  Exchequer,  at  the  end  of 
the  judgment,  observes,  that  if  there  were  any  analog}'  in  principle  between  the 
case  of  Burnett  v.  Lj-nch,  and  that  before  the  court,  the  defendant's  implied 
promise  would  only  be  to  indemnify  against  such  calls  as  should  be  made  while 
he  was  beneficially  interested,  whereas  the  plaintiff  Humble  claimed  an  indemnity 
against  calls  made  after  the  defendant  had  parted  with  his  interest.  This,  no 
doubt,  is  a  very  important  distinction;  and  though  the  Court  of  Exchequer 
expresses  an  opinion  that  there  was  no  contract  of  indemnity  at  all,  it  adverts 
to  the  difference  between  a  claim  to  indemnify  during  the  time  the  defendant 
is  beneficially  interested,  and  a  claim  to  be  indemnified  after  he  has  ceased  to 
be  interested.  The  circumstances  of  the  present  case  are,  therefore,  distinguish- 
able from  those  in  Humble  r.  Langston,  and  it  consequently  is  not  so  direct  an 
authority  against  the  plaintiff's  claim  in  the  present  case,  as  at  first  sight  it  might 
appear  to  be. 

'*  It  seems  to  us,  therefore,  that  the  circumstances  of  this  case  bring  it 
directly  within  the  principle  upon  which  Burnett  r.  Lynch  was  decided.  In  the 
present  case,  the  defendant  entered  into  no  express  agreement  to  pay  calls  or 
indemnify,  but  he  accepted  the  only  transfer  the  plaintiff  could  give,  and  which 
invested  him  with  full  power  to  become  the  registered  owner  of  the  shares  when 


§  40.  INDEMNITY  AGAINST   FUTURE  CALLS.  139 

*  6.  It  seems  most  unquestionable  that  a  trustee  may  be  made 
liable  for  assessments  or  calls  upon  the  shares  standing  in  his 
*  name,  beyond  the  amount  of  the  trust  property.^  And  the  trans- 
feree of  shares,  having  taken  upon  himself  the  position  and  attitude 
of  owner,  cannot  be  allowed  to  excuse  himself  from  responsibility 
by  pleading  irregularity  in  transfers,  and  it  makes  no  difference  in 
tliis  respect  whether  he  hold  as  trustee  or  beneficially. 

7.  Thus  where  reserved  shares  were  offered  to  the  shareholders 
and  the  executors  of  such  as  are  deceased,  in  proportion  to  the 
original  shares,  it  was  held  that  executors  who  accept  shares  must 

he  pleased.  That  transfer  expressed  that  the  transferee  took  them  subject  to 
the  sainc  rules  as  those  under  which  the  plaintiiT  held  them,  one  of  which  was, 
that  the  registered  owner  should  pay  the  calls.  It  could  hardly  have  been  the 
intention  of  the  parties,  that  if  the  defendant,  for  his  own  benefit,  omitted  to 
make  a  perfect  transfer,  by  registration  in  the  company's  books,  the  plaintiff 
should  still  continue  to  pay  the  calls ;  and  if  that  was  not  the  intention,  was  it 
not  understood  between  them  that  the  defendant  should  save  the  plaintiff*  harm- 
less from  any  calls  made  during  the  time  when  he  was  virtually  owner  of  the 
shares? 

"  In  Burnett  v.  Lynch,  a  lease  had  been  granted  to  Burnett,  in  which  he  cov- 
enanted to  pay  the  rent  and  repair  the  premises ;  his  executors  assigned  the 
lease  to  LjTich,  subject  to  the  performance  of  the  covenant,  but  without  any 
express  covenant  or  contract  by  him  that  he  would  pay  the  rent  or  perform  the 
covenant.  The  executors  were  called  upon  by  the  landlord,  and  obliged  to  pay 
damages  for  not  repairing,  according  to  the  covenant,  during  the  time  Lynch 
was  assignee;  the  executors  brought  an  action  on  the  case  against  Lynch, 
founded  on  a  breach  of  duty  in  not  repairing.  In  giving  judgment  for  the 
plaintiff's,  Abbott,  Ch.  J.,  says,  '  It  is  true,  the  defendant  entered  into  no  express 
covenant  or  contract  that  he  would  pay  the  rent  or  perform  the  covenants ;  but 
he  accepted  the  assignment  subject  to  the  performance  of  the  covenants ;  and 
we  are  to  consider  whether  any  action  will  lie  against  him.  If  we  should  hold 
that  no  action  will  lie  against  him,  the  consequence  will  follow,  that  a  man  hav- 
ing taken  an  estate  from  another,  subject  to  the  payment  of  rent  and  perform- 
ance of  covenants,  and  having  thereby  induced  an  undertaking  in  the  other  that 
he  would  pay  the  rent  and  perform  the  covenants,  will  be  allowed  to  cast  thatk 
burden  upon  the  other  person.  Reason  and  common  sense  show  that  that  never 
could  be  intended.'  He  then  goes  on  to  say,  that  though  an  action  on  the  case 
would  lie,  there  might  also  be  an  action  of  assumpsit. 

•*  With  the  distinction  of  circiunstances  to  which  we  have  already  adverted 
between  this  case  and  that  of  Humble  v.  Langston,  we  think  that  the  principle 
ujMjn  which  the  case  of  Burnett  v.  Lynch  was  decided,  is  directly  applicable  to 
the  present  case,  and  that  the  plaintiff*  is  entitled  to  make  the  rule  absolute  to 
set  aside  the  nonsuit,  and  enter  a  verdict  upon  the  first  count  of  the  declaration, 
and  so  much  of  the  pleas  as  may  be  applicable  to  that  count." 

»  Hoare  ex  parte,  2  Johns.  &  Hem.  229 ;  s.  c.  8  Jur.  N.  S.  713. 

•  137,  188 


140 


TRANSFER   OP   SHARES. 


CH.  vm. 


be  placed  upon  the  list  of  contributories  ia  their  own  right,  and  not 
in  their  representative  capacity.* 


SECTION  X. 


Fraudulent  Practices  to  raise  the  Price  of  Shares. 


1.  Courts  of  equity  will  vacate  sales  so  pro- 

ewred. 

2.  Necessary  parties. 

3, 4.   Dividends  declared  when  rume  are  earned 

will  vacate  sales,  and  subject  directors 

to  indictment. 
5.   Equity  will  not    interfere   where  vendor 

acted  bona  fide,  unless  the  shares  were 

valueless. 


6.  Managers  of  company  liable  in  tort  to  par- 
ty injured. 

7  and  n.  10.  Purchasing  shares  in  another 
company  considered. 

8.  BoD&  fide  purchaser  of  shares  Jraudulently 
issued  acquires  same  rights  as  other 
shareholders. 


§  41.  1.  All  fraudulent  practices,  either  of  the  shareholders,  or 
directors,  resorted  to  for  the  purpose  of  raising  the  price  of  shares 
in  the  market,  wliere  sales  have  been  induced  in  faith  of  the  truth 
of  such  representations,  will  be  relieved  against  in  a  court  of 
equity.^    As  where  the  directors  of  a  joint-stock  company,  in  *  order 

"  Feamside  &  Deans  Case,  Law  Rep.,  1  Ch.  231. 

'  Stainbank  r.  Femley,  9  Simons,  556.  And  in  a  very  recent  case,  the 
plaintiff,  a  director  in  a  bank,  who  had  been  such  from  its  organization,  who  usu- 
ally attended  the  meetings,  and  was  actually  present  and  took  part  in  the  pro- 
ceedings of  the  board  of  directors  when  the  last  dividend  was  declared,  having 
purchased  from  the  cashier  of  the  institution  twenty  shares  of  the  capital  stock, 
brought  an  action  to  have  such  contract  rescinded,  and  to  recover  back  the 
money  paid,  on  the  ground  of  false  representations  and  concealments  by  the 
cashier  as  to  the  value  of  the  stock  and  the  condition  of  the  bank  at  the  time 
of  the  purchase :  Held,  that  the  plaintiff  was  not  estopped  from  setting  up  his 
actual  ignorance  of  the  condition  of  the  bank  at  the  time  of  the  sale. 

That  although  the  purchaser  was  a  director  of  the  bank,  having  the  means 
of  knowledge,  he  was  not  in  the  particular  transaction  chargeable  with  notice  of 
the  condition  of  the  bank. 

That  if  he  was  actually  ignorant  of  its  condition,  the  fraudulent  vendor 
would  be  equally  responsible  to  him  for  the  deceit  as  to  any  stranger  to  the  in- 
stitution. 

That  it  was  not  a  case  in  which  the  plaintiff  was  legally  bound  to  know  the 
truth  or  falsity  of  the  vendor's  representations. 

Held,  also,  that  the  evidence  in  such  action  plainly  showing  that  at  the  time 
of  the  alleged  sale  and  transfer  of  the  stock,  on  the  29th  August,  1857,  the  bank 
was,  by  the  application  of  all  the  ordinary-  tests,  sound,  solvent,  and  prosperous, 
♦  139 


§  41.  PRACTICES  TO  RAISE  THE  PRICE  OP  STOCK.  141 

to  sell  their  shares  to  advantage,  represented  in  their  reports,  and 
by  their  agents,  that  the  affairs  of  the  company  were  in  a  very 
prosperous  state,  and  declared  large  dividends,  at  a  time  when  the 
affairs  of  the  company  were  greatly  embarrassed. 

2.  A  person  who  had  been  induced,  by  these  means,  to  purchase 
shares  of  one  of  the  directors,  filed  a  bill  against  that  director, 
praying  to  be  paid  his  purchase-money  and  offering  to  retransfer 
the  shares ;  a  demurrer  for  want  of  equity,  and  because  all  the  other 
partners  in  the  transaction  ought  to  have  been  made  parties,  was 
overruled.  But  where  a  bill  was  filed  against  the  public  officer  of 
a  joint-stock  bank,  charging  a  *  similar  fraud,  through  the  fraudu- 
lent representations  of  the  directors,  in  their  reports,  as  to  the 
prosperous  state  of  the  company's  affairs,  and  that  the  plaintiff 
had  thereby  been  induced  to  purchase  five  hundred  shares  in  the 
bank,  and  praying  that  the  sale  might  be  declared  void  as  between 
him  and  the  company,  and  that  they  might  be  decreed  to  repay 
the  purchase-money,  it  was  held,  that  as  the  litigation  was  between 
one  member  of  the  partnership  and  the  other  members,  the  public 

and  the  stock  worth  all  that  the  defendant  had  represented  it  to  be,  the  plaintiff 
could  not  be  allowed  to  show  the  contrary  by  introducing  in  evidence  what  pur- 
ported to  be  a  certified  copy  of  proceedings  had  in  November,  1857,  on  the 
petition  of  certain  stockholders  for  the  re-establishment  of  the  bank.  Lefevcr  r. 
Lefever,  80  N.  Y.  27. 

In  the  very  recent  case  of  Smith  r.  The  Reese  River  Silver  M.  Co.,  Law  Rep. 
2  Eq.  264;  8.  c.  2  Jur.  N.  S.  616  (April,  1866),  where  a  person  was  induced  to 
take  shares  in  a  company  on  the  faith  of  a  statement  in  the  prospectus,  as  to  the 
nature  of  the  property  contracted  to  be  purchased,  which  statement  the  promoters 
had  no  ground  for  believing  to  be  true,  and  which  turned  out  to  be  untrue,  Sir  W. 
Page  Wood,  V.  C,  held,  he  was  entitled  to  an  injunction  restraining  the  company 
from  enforcing  calls  against  him,  notwithstanding  the  articles  of  association  to 
which  the  prospectus  referred  would  have  informed  the  purchaser  that  the  state- 
ment in  the  prospectus  was  not  justified.  The  learned  judge  said :  "  lie  is  not 
bound  to  call  at  the  office  for  the  mere  puqwse  of  ascertaining  whether  the  repre^ 
sentations  are  false  or  not.  lie  was  entitled  to  rely  upon  the  representations 
made  to  him  as  being  true  to  the  knowledge  of  the  directors." 

But  the  party  who  claims  to  be  injured  by  such  fraudulent  practices  of  directors 
and  other  agents  of  corporations  must  bring  his  action  for  relief  at  the  ear> 
liest  practicable  opportunity  after  having  learned  the  probable  fact  of  such  fraud- 
ulent practices.  Clarke  v.  Dickson,  1  El.  Bl,  &  El.  148,  8.  c.  6  Jur.  N.  S.  1029 ; 
Hop  &  Malt  Company  in  re,  Law  Rep.  1  Eq.  483.  One  who  purchases  upon 
the  facts  stated  in  a  prospectus  must  be  held  to  have  notice  of  facts  stated  in 
other  documents  expressly  referred  to  unless  there  is  special  grounds  for  pre- 
suming the  contrary.     lb. 

*  140 


142  TRANSFER  OP  SHARES.  CH.  VUI. 

officer  was  improperly  made  a  party,  as  representing  the  company, 
and  a  demurrer  was  allowed.^ 

But  in  a  late  case  before  the  Court  of  Chancery  Appeal,  it 
was  decided  that  the  directors  of  a  railway  company  are  in  the 
position  of  trustees,  and  if  the  purchaser  has  not  by  his  own  con- 
duct affected  his  rights,  the  company  cannot,  as  against  him, 
retain  money  acquired  from  a  fraudulent  sale  of  their  property  to 
him,  through  the  false  representations  of  their  directors.  But  the 
court  held  that  the  plaintiflF  was  not  entitled  to  a  decree  against 
the  directors,  but  was  entitled  to  a  decree  against  the  company  for 
his  money  and  interest.^ 

And  it  seems  to  be  settled,  by  the  decision  of  the  House  of 
Lords,  that  in  England  and  in  Scotland,  for  any  fraudulent  act 
done  by  the  directors,  without  the  range  of  the  powers  of  the  com- 
pany, whereby  third  persons  suffer  damage,  they  are  personally 
liable  to  an  action :  but  for  all  such  acts  within  the  power  of  the 
body  of  the  shareholders  to  sanction,  although  the  directors  might 
not  have  been  justified  in  what  they  were  doing,  there  could  be 
no  right  of  action.* 

And  a  director  cannot  screen  himself  from  responsibility  for  any 
imposition  which  is  brought  upon  others  by  means  of  the  *  circula- 
tion of  a  prospectus  through  his  instrumentality,  upon  the  ground 
that  the  document  is  capable  of  a  construction  by  which  it  may  be 
regarded  as  true.  It  is  for  the  jury  to  say  whether  that  is  the 
natural  sense.^  And  it  is  not  necessary  that  there  should  have 
been  any  direct  communication  between  the  plaintiff  and  defend- 
ant in  order  to  subject  the  defendant  to  an  action  for  false  repre- 
sentation. If  the  defendant  authorized  the  circulation  of  the 
prospectus  before  the  public,  containing  false  representations,  by 

'  Seddon  v.  Connell,  10  Simons,  68.  It  was  further  held,  in  this  case  (10 
Simons,  79)  that  it  is  not  competent  for  the  party  in  such  case  to  file  a  bill  against 
the  company  and  some  of  the  directors,  praying,  that  if  he  is  not  entitled  to  re- 
lief against  the  company,  he  may  have  it  against  the  directors,  and  that  such  a 
bill  is  demurrable,  on  the  ground  that  the  prayer  for  relief  should  be  absolute, 
for  relief  against  the  directors,  in  order  to  maintain  the  bill  against  them.  But 
it  is  not  necessary  to  make  all  the  parties  to  a  fraud  defendants  in  a  bill  for 
relief. 

'  Conybeare  v.  New  Brunswick  &  Canada  Railw.  &  Land  Company,  1  De  G. 
F.  &  J.  578 ;  8.  c.  6  Jur.  N.  S.  518. 

*  Davidson  v.  Tulloch,  3  McQu.  Ho.  Lds.  783 ;  8.  c.  6  Jur.  N.  S.  543. 

»  Clarke  r.  Dickson,  6  C.  B.  N.  S.  453 ;  8.  c.  5  Jur.  N.  S.  1029.  See  also  Nicol 
ex  parte,  in  re  Royal  British  Bank,  3  De  G.  F.  «&  J.  387  ;  s.c.  6  Jur.  N.  S.  205. 
*  141 


§  41.  PRACTICES  TO  RAISE  THE  PRICE  OP  STOCK.  143 

which  the  plaintiff  was  misled,  it  is  the  same  as  if  tlie  defendant 
had  made  such  representations  to  him  personally.^  And  tlie  fact 
that  other  inducements  were  also  held  out  to  plaintiff  by  other 
parties  by  which  he  was  partially  influenced,  will  not  excuse  the 
defendant.^ 

But  the  representation  of  an  officer  of  the  company  as  to  the 
effect  of  deeds,  which  it  forms  no  part  of  his  duty  to  expound, 
will  not  release  the  party  executing  the  deed  from  his  liability.^ 

3.  The  declaring  of  dividends  by  the  directors,  where  none 
have  been  earned,  if  done  by  them  for  the  purpose  of  fictitiously 
enhancing  the  price  of  shares,  for  their  own  benefit,  is  regarded 
as  such  a  fraud  as  will  relieve  a  party  who  has  purchased  shares 
in  faith  of  such  facts,  at  prices  greatly  beyond  their  value,"  and 
the  transfer  of  the  shares  will  be  set  aside. 

4.  In  this  case,"  Lords  Campbell  and  Brougham  concurred  in 
saying :  "  Dividends  are  supposed  to  be  paid  out  of  profits  only, 
and  where  directors  order  a  dividend  to  be  paid,  when  no  such 
profits  have  been  made,  without  expressly  saying  so,  a  gross 
fraud  is  practised,  and  the  directors  are  not  only  civilly  liable  to 
those  whom  they  have  deceived  and  injured,  but  are  guilty  of 
conspiracy,  for  which  they  are  liable  to  be  prosecuted  and  pun- 
ished." 

5.  Where  both  parties  labored  under  the  same  delusion  in  re- 
gard to  the  value  of  stock,  relief  could  not  be  granted,  of  course, 
on  the  ground  of  fraud  in  the  sale,  and  a  court  of  equity  *  will  not 
ordinarily  interfere  to  set  aside  a  sale,  on  the  ground  of  mutual 
misapprehension  as  to  the  state  and  condition  of  the  subject-mat- 
ter, unless  in  extreme  cases,  as  where  that  is  sold  as  valuable 
which  is  wholly  valueless,  or  does  not  exist.^  To  constitute  a 
fraud  in  such  cases,  it  is  requisite,  ordinarily,  that  the  parties 
should  have  been  upon  unequal  footing  in  regard  to  their  means 
of  access  to  the  knowledge  of  the  true  state  of  the  company's  * 
funds  and  property,  and  that  the  party  gaining  the  advantage  in 
the  bargain  should,  in  some  way,  participate  in  giving  currency  to 
the  false  estimate  of  its  condition,  beyond  the  mere  fact  of  repeat- 

•  Athenseum  Life  Ins.  Co.  in  re  Sheffield,  6  Jur.  N.  S.  216 ;  8.  c.  Johnson, 
Eng.  Ch.461. 

'  Burnes  r.  Pennell,  2  House  of  Lords'  Cases,  497. 

»  1  Story's  Eq.  Jur.  §  142 ;  Hitchcock  v.  Giddings,  4  Price,  186, 141 ;  2  Kent, 
Comm.  469. 

•  142 


144  TRANSFER  OP   SHARES.  CH.  VIII. 

ing  the  report  of  the  directors,  where  both  parties  have  equal 
means  of  judging  of  its  correctness. 

6.  It  seems  to  be  regarded  as  settled  law,  that  in  case  of  such 
false  representations  to  raise  the  price  of  stocks,  and  damage 
thereby  sustained,  the  suffering  party  may  maintain  an  action  of 
tort  against  the  party  making  the  false  representation,  although 
it  were  not  made  directly  to  such  injured  party,  there  being  no 
necessity  for  any  privity  between  the  parties  to  support  an  action 
of  tort,  for  a  false  representation.  But,  where  the  action  is  ex 
contractu,  or  quau  ex  contractu^  some  privity  is  indispensable  to 
the  maintenance  of  the  action.^ 

7.  It  has  recently  been  decided  that  a  bona  fide  sale  and  trans- 
fer of  property  of  one  company  to  another,  in  consideration  of 
shares  in  the  one  company  being  transferred  to  the  other,  is  not 
such  a  return  of  capital  as  would  be  in  contravention  of  the  Eng- 
lish statute,  which  is  in  confirmation  of  the  general  rule  of  law, 
prohibiting  the  conversion  by  corporations  of  capital  into  income, 
and  thus  virtually  reducing  the  stock  of  the  company  below  the 
requirements  of  the  charter ;  and  on  the  other  hand  giving  *  the 
shares  of  the  company  a  false  value  in  the  market  by  reason  of 
fictitious  dividends.^*' 

»  Gerhard  v.  Bates,  2  El.  &  Bl.  476 ;  s.  c.  20  Eng.  L.  &  Eq.  129.  In  this  case 
the  defendant  was  one  of  the  promoters  and  managing  directors  of  a  joint-stock 
company,  and,  in  offering  the  shares  for  sale,  had  guaranteed  a  certain  semi- 
annual dividend  to  all  who  should  purchase,  but  without  any  other  communication 
with  the  plaintiff  personally,  but  the  plaintiff  purchased  upon  the  faith  of  such 
general  guaranty  or  representation  ;  and  it  was  held  that  he  could  not  maintain 
an  action  upon  the  guaranty,  but  that  he  might  recover  in  tort,  as  for  a  fraudulent 
representation.     Post,  §§  175,  187. 

'0  Cardiff  C.  &  C.  Co.  m  re  Norton,  11  W.  Rep.  1007.  See  also  McDougall 
V.  Jersey  Imp.  H.  Co.,  2  H.  &  M.  528  ;  s.  c.  10  Jur.  N.  S.  1043.  This  point  of 
one  company  taking  shares  in  another  company  is  discussed,  to  some  extent,  in 
the  Court  of  Chancery  Appeal  in  the  recent  case  of  Great  Western  Railw.  Co. 
V.  Metropolitan  Co.,  9  Jur.  N.  S.  662.  There  can  be  no  doubt,  as  a  general 
rule,  this  will  not  be  allowed,  unless  by  the  express  sanction  of  legislative  per- 
mission. And  it  was  here  considered,  that  such  an  express  sanction  will  not  be  con- 
strued to  extend  to  additional  shares,  issued  by  the  same  company,  and  expressly 
required  to  be  allotted  to  the  existing  shareholders.  Vice-Chancellor  Wood,  when 
the  case  was  before  him,  cited  the  case  of  Solomons  v.  Lang,  12"Beav.  377,  as 
establishing  the  right  of  the  defendant  in  the  suit,  to  raise  the  question  of  the  plain- 
tifTs  right  to  take  these  additional  shares,  beyond  the  amount  which  the  special 
legislative  permission  authorized.  The  case  of  the  Attorney-General  v.  The  Great 
*  143 


§42. 


LIABILITY  OP  COMPANY   FOR  NOT  REGISTERING. 


145 


8.  But  the  bona  fide  purchaser  of  shares  fraudulently  issued 
acquires  the  same  right  as  other  shareholders,  unless  he  buys 
after  tlie  company  is  in  the  process  of  liquidation ;  and  even  in 
that  case  he  may  come  in  for  his  equal  proportion  of  the  assets,  by 
proving  that  he  bought  of  one  who  was  a  bona  fide  holder  before 
the  company  was  subjected  to  the  process  of  being  wound  up." 
But  a  bona  fide  sale  of  shares  in  a  company,  entered  into  after  the 
presentation  of  the  petition,  but  before  the  first  advertisement  for 
winding  up  the  company,  both  vendor  and  purchaser  being  ignorant 
that  such  a  petition  was  pending,  was  held  sufficient  to  have  passed 
the  title.i2 

SECTION  XI". 
Liability  of  Company  for  not  registering  Transfers. 


1.  Tht  company  liable  to  action. 

2.  May  be  compelled  to  record  transfers  by 

mandamus. 
8.   But  not  compellable  to  record  mortgages  of 
shares. 


4.  Grounds  of  denying  mandamus. 

5.  Bill  in  equity  most  appropriate  remedy. 

6.  Rule  of  damages. 


§  42.  1.  It  seems  to  be  settled  in  England,  that  an  action  will 
*  lie  against  a  joint-stock  company,  who  neglect  or  refuse,  upon  prop- 
er request,  to  register  shares  and  deliver  new  certificates,  after 
the  deed  of  transfer  has  been  sent  to  the  secretary.  Damages 
may  be  recovered,  it  seems,  by  reason  of  such  refusal  of  the  com- 
pany, whereby  the  party  is  deprived  of  the  right  to  attend  and  vote 
at  the  meetings  of  the  company,  and  especially  where  calls  are 
made  upon  the  shares,  and  in  consequence  of  non-payment  the 
shares  are  declared  forfeited  and  sold.^ 

Northern  Railw.  Co.,  1  Drew.  &  Sm.  154;  8.  c.  6  Jur.  N.  S.  1006,  is  also  cited 
by  the  learned  judge  as  analogous  to  the  case  then  before  him. 

"  Barnard  v.  Bagshaw,  1  H.  &  M.  69. 

"  Emmerson's  case.  Law  Rep.  2  Eq.  231 ;  8.  c.  reversed  on  Appeal,  Law 
Rep.  1  Ch.  App.  433. 

'  Hodges  on  Railways,  123;  Catchpole  v.  Ambergate  Railw.  Co.,  1  Ellis  & 
Black.  Ill ;  16  Eng.  L.  &  Eq.  163.  See  also  Wilkinson  r.  Anglo  California 
Gold  Co.,  18  Q.  B.  728 ;  8.  c.  12  Eng  L.  &  Eq.  444.  In  regard  to  the  right  to 
sustain  a  writ  of  mandamus  in  England,  to  compel  such  transfer,  upon  the  books 
of  the  company,  see  Rex  r.  Worcester  Canal  Co.,  1  M.  &  R.  529;  Regina  v. 
Liverpool,  Manchester,  &  Newcastle-upon-Tyne  Railw.  Co.,  11  Eng.  L.  &  Eq. 
408 ;  Sargent  a  Franklin  Insurance  Co.,  8  Pick.  90.     So  also  an  action  on  the 

10  •144 


146  TRANSFER  OP  SHARES.  CH.  VHI. 

2.  There  can  be  no  question  probably  in  this  country,  that 
where  the  company  refuse  on  reasonable  request,  to  make  the  prop- 
er entry  upon  their  books  of  the  transfer  of  shares,  whereby  the 
owner  is  liable  to  be  deprived  of  any  legal  right,  or  pecuniary 
advantage,  the  company  may  be  compelled  to  do  their  duty,  in 
the  premises,  by  writ  of  mandamus. 

3.  But  it  has  been  held,  that  the  company  are  not  bound  to  reg- 
ister trust-deeds  or  mortgages,  and  especially  such  as  contain  other 
property,  or  the  stock  of  other  companies.  The  mandamus  was 
refused  in  such  a  case,  in  the  Queen's  Bench,  so  late  as  *  May,  1856, 
and  upon  the  ground  as  stated  by  Lord  Campbell,  Ch.  J.,  that  "  if 
the  company  were  bound  to  register  this  deed,  they  must  become 
the  custodians  of  it,  and  must  incur  great  responsibility  as  to  its 
safe  custody,  and  that  therefore  convenience  requires  that  they 
should  only  be  bound  to  register  mere  transfers,  passing  the  legal 
title,  and  showing  who  is  the  legal  owner  of  the  shares."  ^ 

4.  But  a  mandamus  to  compel  the  registry  of  the  transfer  of 
shares  in  a  railway  company  to  an  infant,^  was  denied.     And  the 

case  will  lie  for  not  transferring  stock.  The  rule  of  damages,  where  the  stock 
has  been  sold,  as  the  property  of  the  vendor,  is  the  value  of  the  shares  at  the  time 
of  the  refusal,  8  Pick.  90,  or  it  has  sometimes  been  held,  the  highest  value,  be- 
tween the  time  of  refusal  and  the  commencement  of  the  action.  Kartright  r. 
Buffalo  Commercial  Bank,  20  Wend.  91 ;  s.  c.  22  Wend.  348.  And  some  cases 
extend  it  even  to  the  time  of  trial.     But  see  ante,  §§  36,  38. 

Where  stock  in  a  railway  is  purchased  and  registered  in  the  name  of  a  married 
woman,  out  of  her  earnings,  she  and  her  husband  may  sue  jointly  for  dividends, 
and  if  she  sue  alone,  it  is  only  ground  of  abatement.  Dalton  v„  Midland  Railw. 
Co.,  13  C.  B.  474;  s.  c.  20Eng.  L.  &  Eq.  273. 

Stock  cannot  be  transferred  so  as  to  pass  the  title  after  the  dissolution  of  the 
corporation,  the  shareholders  being  then  only  entitled  to  a  share  in  the  assets. 
James  v.  Woodruff,  2  Denio,  574. 

Where  a  company  have  registered  a  transfer,  which  is  alleged  to  be  a  forgery, 
and  are  threatened  with  a  suit  from  both  the  transferror  and  transferee,  the 
Court  will  not  grant  an  interpleader.  Dalton  v.  Midland  Railw.  Co.,  12  C.  B. 
468 ;  8.  0.  13  C.  B.  474;  22  Eng.  L.  &  Eq.  452. 

«  Reginar.  General  Cemetery  Co.,  6  El.  &  Bl.  415 ;  s.  c.  36  Eng.  L.  &  Eq.  126. 

'  Reg.  V.  Mid.  Counties  &  Sh.  Junction  Railw.  Co.,  15  Ir.  Com.  Law,  514, 
525;  8.  c.  9  Law  T.  N.  S.  151.  But  the  practice  of  compelling  the  registry  of 
transfers,  by  mandamus,  seems  well  established,  even  where  they  are  not  of  a 
character  to  induce  the  most  favorable  consideration,  as  where  it  was  a  transfer  to 
a  pauper  to  enable  the  transferror  to  get  rid  of  liability,  it  being  intended  to  be 
out  and  out,  with  no  secret  trust  for  the  transferror.  lb.  The  transfer  of  shares 
for  special  purposes  is  so  frequent,  and  the  motives  and  occasions  are  so  various, 
that  it  could  not  be  expected  to  give  an  abstract  of  all  the  cases?  As  a  general 
♦  146 


§  42.  LIABILITT  OP  COMPANY   FOR   NOT  REGISTERING.  147 

court  of  equity  declined  to  interfere  to  compel  the  registry  of  the 
transfer  of  shares  when  the  company  are  denied  the  opportunity  of 
inspecting  the  certificates  by  their  directors.* 

5.  The  more  effectual,  and  at  present  the  more  usual,  remedy 
against  corporations  for  refusing  to  allow  the  transfer  of  stock  upon 
their  books  into  the  name  of  the  real  owner  is  by  bill  in  equity. 
And  in  one  case,  where  the  party  whose  stock  had  been  allowed  by 
the  bank  to  be  transferred  into  the  names  of  those  who  had  pur- 
chased it  under  forged  powers  of  attorney  sought  redress  by  an 
action  at  law,  the  court  said,  "  We  cannot  do  justice  to  this  plain- 
tiff unless  we  hold  that  the  stocks  are  still  his,"  and  therefore  de- 
nied the  action  for  the  value  of  the  stocks,  but  allowed  a  *  recovery 
for  the  dividends  which  had  been  declared  after  the  transfer. 

6.  And  there  is  the  same  difficulty  in  compensating  the  purchas- 
er of  stocks,  where  a  transfer  on  the  books  has  been  denied  in  an 
action  at  law.  In  some  cases  this  has  been  attempted  to  be  done 
by  allowing  the  party  to  recover  the  highest  market  price  of  the 
stock  between  the  refusal  to  transfer  and  the  trial.  But  the  only 
rule  at  all  analogous  to  settled  principles  seems  to  be  that  the  cor- 
poration shall  pay  the  value  of  the  stock  at  the  date  of  their  refusal 
to  transfer  it,  as  that  is  the  time  when  the  corporation  became  in 
default,  and  when  by  said  default  the  stock,  as  between  the  parties 
became  theirs.^  The  question  of  the  effect  of  forged  and  fraudu- 
lent transfers  is  very  ably  discussed  by  the  court  of  Chancery 
Appeal  in  Tayler  v.  Great  Indian  Peninsular  Railway.* 

rule,  one  who  understandingly  consents  to  have  shares  transferred  into  his  name 
upon  the  public  registry-  of  shares,  must  be  content  to  assume  all  the  responsi- 
bility towards  the  public  and  the  other  shareholders  not  conusant  of  the  special 
contract,  which  any  other  shareholder  would  incur.  But  as  between  the  com- 
pany and  the  purchaser  there  may  be  special  grounds  of  relief.  Coleman  ex 
parte,  1  De  G,  J.  &  Sm.  495 ;  Grady  ex  parte,  id.  488 ;  Barrett  ex  parte,  10 
Jur,  N.  S.  711 ;  Saunders  ex  parte,  id.  246 ;  8.  c.  4  Giff.  179.  ^ 

Any  transaction  of  this  kind  will  not  be  disturbed,  after  considerable  lapse  of 
time.  Spackman  ex  parte,  1  Do  G.  J.  &  Sm.  604;  8.  c.  10  Jur.  N.  S.  911; 
Lane  ex  parte,  id.  25;  Spackman  ex  parte,  reversed,  11  Jur.  N.  8.  207. 

*  East  Wh.  M.  M.  Co.  in  re,  33  Beav.  119. 

»  Pinkerton  r.  M.  &  L.  Railw.,  1  Am.  Law  Reg.  N.  S.  96;  8.  c.  42  N.  H. 
424. 

«  6  Jur.  N.  S.  1087 ;  8.  c.  4  De  G.  &  J.  659.  See  post,  §  193,  pi.  12.  And 
see  Building  Association  r.  Sendemeyer,  60  Penn.  St.  67. 

•146 


148 


TRANSFER   OP  SHARES. 


CH.  Yin. 


SECTION    XII. 


When   Calls  become  Perfected. 


1.  Calls  are  made  when  the  sum  is  assessed, 

notice  may  be  given  ajiencards. 

2,  3.   Directors  the  proper  authority  to  make 

calls. 


4.    The    manner    of  giving  notice  and    of 
proof. 


§  43.  1.  The  English  statute  of  1845,  called  the  Companies 
Clauses  Consolidation  Act,  requires  all  calls  to  be  paid  before  any 
valid  transfer  can  be  made.  Under  this  statute,  and  similar  pro- 
visions in  special  charters,  it  has  often  been  made  a  question,  when 
a  call  may  be  said  to  be  made.  It  seems  to  be  considered  that  the 
word  call  in  this  connection,  may  refer  to  the  resolution  of  the 
directors,  by  which  a  certain  sum  is  required  to  be  paid  to  the  com- 
pany, by  the  shareholders,^  or  secondly  to  the  notice  to  *  the  share- 
holders of  the  assessment,  and  the  time  and  place  at  which  they 
will  be  required  to  make  payment,  and  the  amount  to  be  paid.  But 
it  seems  finally  to  be  settled,  that  the  company  are  not  obliged  to 
regard  any  transfer,  made  after  the  resolution  of  the  directors, 
making  the  assessment,  which  need  not  specify  the  time  of  pay- 
ment, but  that  may  be  determined,  by  a  subsequent  act  of  the 
board  .2 

*  Ex  parte  Tooke,  In  re  The  Londonderry  and  Coleraine  Railw.  Co.,  6  Railw. 
C.  1  (1849)  ;  North  American  Colonial  Association  of  Ireland  v.  Bentley,  19 
L.  J.  (Q.  B.)  427 ;  15  Jur.  187. 

A  resolution  of  the  board  of  directors  requiring  the  stockholders  to  pay  an 
instalment  of  ten  per  cent  every  thirty  days,  on  all  cash  subscriptions,  until  the 
whole  is  paid,  and  that  due  notice  thereof  be  given,  is  admissible  evidence  of 
calls  for  the  whole  subscription.  It  was  here  considered  that  the  words  "month," 
and  "  thirty  days,"  used  in  different  portions  of  the  act,  must  be  considered  of 
the  same  import.  Heaston  v.  Cincinnati  &  C.  R.  R.,  16  Ind.  275;  Sands  v. 
Sanders,  26  N.  Y.  239. 

»  Great  North  of  England  Railw.  Co.  v.  Biddulph,  2  Railw.  C.  401 ;  s.  C. 
7  M.  &  W.  243 ;  Newry  and  Enniskillen  Railw.  Co.  ».  Edmunds,  5  Railw.  C. 
275;  8.  c.  2  Exch.  118,  122.  Parke,  B.,  in  The  Ambergate,  &c.,  and  Eastern 
Junction  Railw.  Co.  v.  Mitchell,  6  Railw.  C.  235 ;  8.  C.  4  Exch.  540 ;  Regina  o. 
Londonderry  &*Coleraine  RaUw.  Co.,  13  Q.  B.  998. 

Unless  there  is  something  in  the  subscription,  or  the  charter  and  by-laws 

of  the  company  requiring  notice  of  caUs,  or  making  the  subscription  payable 

upon  calls,  it  is  said   in   Lake   Ontario  A.    &   N.  Y.  v.  Mason,   16  N.  Y. 

451,  that  it  is  not  indispensable  that  notice  of  calls  shoUld  be  given  the  sub- 

*147 


§  43.  WHEN  CALLS  BECOME  PERFECTED.  149 

2.  It  seems  the  directors,  and  not  the  company,  are  the  proper 
parties  to  make  calls,  under  the  English  statutes. 

3.  This  seems  to  have  been  decided  upon  the  general  ground  of 
the  authority  of  the  directors.^ 

*  4.  The  question  of  what  shall  amount  to  a  good  call,  and  how 
the  same  may  be  shown  in  court,  is  considerably  examined  in  Miles 
V.  Bough.*  It  is  here  decided,  that  no  person  could  be  sued  for 
non-payment  of  a  call  till,  he  had  received  due  notice  thereof, 
although  the  statute  did  not  require  notice  in  express  terms  ;  that 
an  order  to  pay  the  money  at  a  given  broker's  was  a  good  call ; 
that  in  the  declaration  it  was  sufficient  to  allege  that  the  calls  were 
made  and  the  defendant  duly  notified,  without  further  specification 
of  particulars ;  and  that  the  jury  may  infer  sufficient  notice  from 
the  fact  of  an  express  promise  to  pay,  notwithstanding  it  appeared 
that  a  defective  notice  had  been  sent,  unless  it  appeared  that  was 
the  only  notice  given,  when  the  case  must  be  decided  upon  the 
sufficiency  of  the  notice  in  fact  given. 

scribers  before  suit.  But  this  seems  contrary  to  the  general  course  of 
decision  upon  the  point,  and  somewhat  at  variance  with  the  idea  of  a  call, 
or  assessment  upon  subscriptions  to  stock.  And  such  seems  to  be  the  general 
understanding  of  the  rule  in  the  American  courts.  But  these  questions  will 
depend  verj'  much  upon  the  special  provisions  of  the  statutes,  in  the  different 
states,  by  which  the  matter  is  controlled,  and  somewhat  upon  the  special  terms 
of  the  contract  of  subscription.  Heaston  p.  Cincinnati  &  C.  R.  R.  16  Ind.  275. 
Thus,  in  the  present  case  it  was  held  the  general  railway  law  of  Indiana  did 
require  notice  and  a  personal  demand  before  proceeding  to  forfeit  the  stock,  but 
not  before  suit  to  recover  instalments  ;  that  as  to  calls  the  statute  required  the 
subscribers  to  take  notice  of  the  action  of  the  directors.  It  is  further  said,  that 
where  the  articles  of  association  or  the  preliminary  articles  of  subscription,  or 
both  combined,  contain  an  undertaking  to  pay  the  amount  subscribed  on  certain 
terms  and  conditions,  an  action  will  lie  to  enforce  the  stipulations  upon  proof  of 
the  subscription  and  the  performance  of  the  conditions. 

'  Ambergate,  N.  &  B.  &  Eastern  Junction  Railw.  Co.  r.  Mitchell,  4  Exch. 
640.  Pollock,  Ch.  B.  '*  The  next  objection  is,  that  the  directors  made  those 
calls ;  but  they  were  competent  to  do  so,  as  they  may  do  all  things,  except  such 
as  are  to  be  done  by  the  shareholders  at  a  general  meeting ;  and  there  is  noth- 
ing in  the  act  which  makes  it  necessarj'  that  the  company  should  make  calls  at 
a  general  meeting." 

Parke,  B.  "  The  directors  may  exercise  all  the  powers  of  the  company  ex- 
cept those  which  are  to  be  exercised  by  the  company  at  their  general  meeting, 
and  the  power  of  making  calls  is  not  such  a  power  as  is  required  to  be  so 
exercised." 

*  3  Q.  B.  845.  Defective  notice  by  publication  is  not  aided  by  personal 
notice  of  a  shorter  time.     Sands  c.  Sanders,  26  N.  Y.  239. 

•  148 


150 


TRANSFER  OP  SHARES. 


CH.  vin. 


SECTION   XIII 


Transfer  by  Death,  Insolvency,  or  Marriage. 


1.  Mandamua  lies  to  compel  the  registry  cf    4.  Notice  requisite  to  perfect  the  tiile  of  mart- 
successor,  gogee. 

8.  In  case  of  death,  personal  representative     5.  Stock  in  trust  goes  to  new  trustees.  ( 

liable  to  caOs.  6.  A^gnees  of  insolvents  not  liable  for  the 

dd)ts  of  the  company. 

§  44.  1.  The  title  to  shares  in  a  railway  is  liable  to  transfer  by 
the  death,  bankruptcy,  or  insolvency  of  the  proprietor,  or  by  mar- 
riage of  the  female  owner  of  such  shares.  In  such  case  the  Eng- 
lish statute  requires  a  declaration  of  the  change  of  ownership,  to 
be  filed  with  the  secretary  of  the  company,  and  the  name  of  the 
new  owner  is  thereupon  required  to  be  entered  upon  the  *  register 
of  shareholders.  A  mandamus  will  lie  to  compel  the  clerk  to  make 
the  proper  entry  in  such  case.^ 

2.  These  incidents  are  so  much  controlled  by  local  laws,  in  dif- 
ferent jurisdictions,  that  it  would  scarcely  comport  with  our  object 
to  state  more  than  the  general  principles  affecting  them.  In  most 
of  the  United  States  all  property,  (especially  personal  estate  as 
railway  shares,)  in  the  first  instance,  upon  tlie  decease  of  the  pro- 
prietor, vests  in  his  personal  representative,  in  trust,  first  for  the 
payment  of  debts,  and  afterwards  for  legatees,  or  in  default  of 
them,  the  heirs  of  such  proprietor. 

3.  And  so  far  as  regards  voting  upon  such  shares,  the  title  of 
the  executor  or  administrator  will  ordinarily  be  suflScient.  Before 
the  name  of  the  executor  or  administrator  is  entered  upon  the 
books  of  the  company,  as  a  shareholder,  the  estate  only  could  be 
held  liable  for  calls  probably,  and  perhaps  the  same  rule  of  liability 
would  obtain  after  that.^    But  in  general  where  shares  in  a  joint- 

'  Rex  r.  Worcester  Canal  Company,  1  M.  &  R.  629. 

*  Fyler  ».  Fyler,  2  Railw.  C.  873,  s.  c.  3  BeaT.  650;  Jacques  v.  Chambers, 
2  Coll.  C.  C.  436 ;  8.  c.  4  Railw.  C.  499.  But  the  administrator  or  other  personal 
representative  of  a  deceased  shareholder,  may,  under  the  recent  English  statute, 
the  Common-law  Procedure,  maintain  an  action  against  the  company  for  refusal 
to  register  his  name,  as  successor,  to  the  title  to  the  shares,  and  after  having  re- 
covered damages,  he  is  entitled  to  a  mandamus  to  compel  the  company  to  register 
his  name.  He  is  abo  entitled  to  the  prerogative  writ  of  mandamus  in  such  cases 
at  common  law.  Norris  r.  The  Irish  Land  Co.,  8  El.  &  Bl.  512 ;  s.  c.  30  Law 
Times,  132. 

•149 


§45. 


LEGATEES  OF  SHARES. 


151 


stock  company  are  bequeathed  specifically,  the  legatee  takes  them 
subject  to  all  future  calls.^  But  where  the  payment  of  future  calls 
is  indispensable  to  bring  the  shares  into  the  state  in  which  the 
testator  regarded  them  in  his  will,  such  calls  should  be  paid  by  the 
estate.* 

4.  In  case  of  death  or  insolvency,  the  title  of  a  mortgagee  first 
notified  to  the  company,  will-  commonly  have  priority.®  Notice  to 
the  company  is  necessary  to  perfect  the  title  of  a  mortgagee,  in  case 
of  bankruptcy  or  insolvency.^ 

*  5.  As  to  the  title  of  the  bankrupt,  all  shares  standing  upon  the 
register  of  the  company  in  his  name  will  be  regarded  as  under  his 
control,  order,  and  disposition,  and  will,  under  the  English  statutes, 
go  to  the  assignees.'^  But  stock  in  any  incorporated  company 
standing  in  the  name  of  the  bankrupt  as  trustee,  is  to  be  trans- 
ferred by  the  assignee  to  the  name  of  new  trustees,  and  a  court  of 
chancery  will  so  order.^ 

6.  The  assignees  of  an  insolvent  estate,  a  portion  of  whose  assets 
consists  of  shares  in  a  manufacturing  corporation,  are  not  liable 
under  special  statutes,  making  shareholders  liable  for  the  debts  of 
the  corporation.  That  is  a  provision  of  positive  law,  and  is  to  be 
construed  strictly.^ 

SECTION  XIV. 
Legatees  of  Shares. 


1.  Entitled  to  election,  interest,  and  new  siiares. 

2.  Shares  owned  at  date  of  unll  pas$,  although 

converted  into  consolidated  stock. 


8.    Consolidated  stock  subsequendy  acquired 
will  not  pau. 


§  45.  1.  Legatees  of  railway  shares  have  the  election  out  of 
which  class  of  shares  their  legacy  shall  be  paid,  when  there  is  more 

'  Blount  V.  Hipkins,  7  Sim.  43,  51 ;  Jacques  o.  Chambers,  2  Coll.  435 ;  Cliva 
r.  Clive,  Kay,  600 ;  Wright  r.  Warren,  4  De  6.  &  Sm.  367 ;  Adams  r.  Ferick, 
26  Beav.  384. 

■•  Armstrong  r.  Burnet,  20  Beav.  384. 

•  Gumming  c.  Prescott,  2  Yo.  &  Coll.  Eq.  Exch.  488. 

•  But  where  all  parties  are  partners,  notice  will  sometimes  be  implied.  Ex 
parte  Waitman,  2  Mont.  &  Ayr.  364 ;  Dimcan  e.  Chamberlayne,  11  Simons, 
123 ;  Etty  p.  Bridges,  2  Yo.  &  CoU.  486. 

'  Shelford,  118-121. 

■  Ex  parte  Walker,  19  Law  J.  Bank.  8. 

•  Gray  v.  Coffin,  9  Cush.  192. 

•160 


152 


TRANSFER   OP  SHARES. 


CH.  vra. 


than  one  class  of  the  same  description  found  in  the  will.  And 
they  are  entitled  to  the  income  of  the  shares,  after  the  death  of  the 
testator,  and  to  receive  any  advantage,  by  way  of  new  shares  result- 
ing from  the  ownership  of  the  shares.^ 

But  a  specific  legatee  of  shares  is  not  entitled  to  a  bonus  on  such 
shares,  declared  after  the  decease  of  the  testator,  but  arising  out  of 
moneys  due  the  company  from  the  testator,  and  which  *  claim  was 
compromised  by  his  executors,  but  such  bonus  belongs  to  the  gen- 
eral fund  of  personal  estate.^  And  such  legatee  must  bear  the 
calls  which  are  made  after  the  testator's  death,  unless  there  is 
something  in  the  will  to  show  a  different  intent.^ 

2.  A  bequest  of  the  testator's  railway  shares,  of  which  he 
should  be  possessed  at  liis  decease,  was  held  to  pass  such  rail- 
way shares  specifically  named  in  the  will  as  the  testator  had  at 
the  date  of  his  will,  although  subsequently  converted  into  con- 
solidated stock  of  the  same  company,  by  a  resolution  of  the 
company. 

3.  But  that  other  consolidated  stock  of  the  same  company  owned 
by  testator  at  his  decease,  did  not  pass  under  the  will,  the  same 
having  been  purchased  after  the  execution  of  his  will.^ 


SECTION  XV. 

Shares  in  Trust. 


1,  2.  Company  may  safdy  deal  ivith  regis- 
tered owner. 

8.  But  equity  will  protect  the  rights  of  ceetma 
que  trust. 


4,  and  note  2.   Discussion  of  the  rights  of 
cestuis  que  trust  in  stock  certificates. 


§  46.  1.  By  the  English  statute,  railway  companies  are  not 
bound  to  see  to  the  execution  of  trusts  in  the  disbursement  of 
their  dividends,  but  are  at  liberty  to  treat  the  person  in  whose 

»  Jacques  r.  Chambers,  2  CoU.  C.  C.  435 ;  8.  c.  4  Railw.  C.  205 ;  Tanner  v. 
Tanner,  5  Railw.  C.  184;  8.  c.  11  Beav,  69.  And  it  is  held  in  this  last  case, 
that  upon  a  bequest  of  railway  shares  and  all  right,  title,  and  interest  therein, 
money  paid  beyond  the  calls  will  pass  to  the  legatee. 

»  Maclaren  v.  Stainton,  27  Beav.  460 ;  8.  c.  6  Jur.  N.  S.  360 ;  Loch  v.  Ven- 
ables,  27  Beav.  598 ;  s.  c.  6  Jur.  N.  S.  238. 

»  Day  V.  Day,  1  Drew.  &  Sm.  261 ;  8.  c.  6  Jur.  N.  S.  365. 

*  Oakes  v.  Oakes,  9  Hare,  666. 
*161 


§  46.  SHARES  IN  TRUST.  153 

name  the  shares  are  registered  as  the  absolute  owner.  It  would 
seem  that  in  case  of  the  bankruptcy  of  a  shareholder  in  a  joint- 
stock  company,  a  court  of  equity  will  sometimes  protect  trust 
funds,  although  registered  in  the  name  of  the  bankrupt,  both  from 
tlie  claim  of  the  assignee  and  the  company,  who  have  made  ad- 
vances to  the  nominal  owner,  upon  the  faith  of  his  being  the  true 
•  owner,  but  without  any  pledge  of  the  stock. ^ 

2.  In  general,  in  this  country,  it  is  believed  railway  companies 
will  be  protected  in  dealing  bona  fide  with  the  person  in  whose 
name  shares  are  registered  on  the  books  of  the  company,  as  the 
absolute  owner,  notwithstanding  any  knowledge  they  may  have  of 
the  equitable  interest  of  third  parties. 

3.  But  there  can  be  no  question,  a  court  of  equity  will  always  pro- 
tect the  interest  of  a  cestui  que  trust,  when  it  can  be  done  without  the 
violation  of  prior  or  superior  equities,  which  have  bona  fide  attached. 

4.  It  was  recently  held  after  careful  examination  of  the 
authorities,^  that  the  holder  of  stock,  as  trustee,  has  prima  facie 
no  right  to  pledge  it  as  security  for  his  private  debt,  and  one  who 
accepts  the  pledge  under  such  circumstances,  acquires  no  rights 
against  the  cestui  que  trust.  And  the  word  "  trustee "  in  the 
certificate,  in  connection  with  the  name  of  the  holder,  is  notice  to 
all  persons  to  whom  the  certificate  may  be  delivered,  sufficient  to 
put  the  party  on  inquiry,  as  to  the  nature  of  the  holder's  title,  and 
the  character  and  extent  of  the  trust. 

'  Pinkett  v.  Wright,  2  Hare,  120.  This  is  a  very  elaborate  opinion  of  the 
learned  Vice-Chancellor  Wiffram,  upon  the  subject  of  protecting  the  interest  of 
cestuis  que  trust  in  the  stock  of  a  banking  company,  standing  in  the  name  of  a 
trustee  who  had  become  bankrupt.  The  trustee  was  also  the  proprietor  of  shares 
in  his  own  right,  all  standing  in  his  name,  without  any  thing  on  the  books  of  the 
company  to  distinguish  which  were  trust  funds. 

It  was  held  that  the  trustee  must  be  presumed  to  have  pledged  such  stock  as 
belonged  to  himself  and  not  £hat  of  his  cestuis  que  trust,  and  that  shares  which 
stood  in  the  name  of  the  trustee  at  the  time  of  the  bankruptcy,  and  thenceforward 
remained  in  his  name,  might  fairly  be  presumed  to  be  identical  with  those  in 
which  the  trust  funds  were  invested,  the  number  of  shares  being  the  same. 

Notice  to  the  company  is  indispensable  to  create  an  equitable  mortgage  of 
railway  shares.  Ex  parte  Boulton  r.  Skelehley,  29  Law  Times,  71 ;  s.  c.  1 
De  G.  &  J.  178. 

•  Shaw  c.  Spencer,  8  Law  Reg.  N.  S.  299 ;  s.  c.  99  Mass.,  not  yet  reported. 
The  decision  here  falls  short,  probably,  of  what  the  authorities  will  justify,  if  the 
case  had  required  it.  But  the  usages  of  the  Stock  Exchange,  whereby  trustees 
are  enabled  to  defraud  their  cestuis  que  trust,  for  the  benefit  of  speculators, 

•162 


154 


TRANSFER   OF   SHARES. 


CH.  VIII. 


SECTION   XVI. 

The  extent  of  Transfer  requisite  to  exempt  from  claim  of 

Creditors. 


8,  4.   In  same  of  the  ttata  no  record  required. 
n.  8.   Question  Jitrther  amsidered. 


1.  How  transfer  of  stock  perfected  a*  to 

creditors. 

2.  Reasonable  time  allowed  to  record  transfer. 

§  46.  a.  1.  The  question  of  what  constitutes  a  valid  transfer 
of  shares  in  a  joint-stock  corporation,  so  as  to  exempt  them  from 
attachment  and  levy  by  creditors  of  the  transferror,  is  considerably 
discussed  in  a  recent  case  in  New  Hampshire  by  a  judge  of  large  ex- 
perience, and  the  result  reached,  that  upon  a  pledge  of  stock  in  a  rail- 
way corporation  in  New  Hampshire,  there  should  be  such  delivery 
as  the  nature  of  the  thing  is  capable  of,  and  to  be  good  against  a 
subsequent  attaching  creditor  the  pledgee  must  be  clothed  with  aU 
the  usual  muniments  and  indicia  of  ownership ;  that  by  the  laws 
of  New  Hampshire,  a  record  of  the  ownership  of  *  shares  must  be 
kept,  by  domestic  corporations,  within  the  state,  and  by  oflBcers 
resident  there ;  and  that  on  the  transfer  of  stock  the  delivery  will 
not  be  complete,  as  to  creditors,  until  an  entry  is  made  upon  such 
stock-record,  or  it  be  sent  to  the  office  for  that  purpose,  and  the 
omission  thus  to  perfect  the  delivery  will  he  prima  fcune^  and  if  un- 

receives  a  moderate  but  very  just  rebuke.  1.  By  declaring  that  certificates  of 
stock  in  blank  are  not  to  be  regarded  as  negotiable  instruments,  cutting  off  all 
equities  of  bona  jide  parties  in  interest,  s.  p.  Sewall  r.  Boston  Water  Power, 
4  AUen,  482.  2.  By  declaring  that  no  usage  or  custom  of  brokers,  or  course  of 
business,  can  avail  to  defeat,  or  qualify,  the  established  rules  of  law,  recognized 
in  courts  of  equity.  The  following  significant  intimation  of  the  court  is  worthy 
of  repetition :  "  The  circumstance  that  stock  certificates,  issued  in  the  name  of 
one  as  trustee,  and  by  him  transferred  in  blank,  are  constantly  bought  and  sold 
in  the  market  without  inquiry,  is  likewise  unaTailing.  A  usage  to  disregard  one's 
legal  duty,  to  he  ignorant  of  a  rule  of  law,  and  to' ad  as  if  it  did  not  exist,  can 
have  no  standing  in  the  courts.''''  We  should  be  rejoiced  to  persuade  ourselves, 
that  we  had  reached  a  point  where  the  dishonest  practices  of  trade  could  no 
longer  receive  countenance  by  the  courts,  either  directly  or  indirectly.  We 
regard  this  case  as  falling  far  short  of  the  truth,  but  as  it  is  all  which  the  case 
required,  it  is  gratifying  to  believe  the  courts  are  moving  in  the  right  direction, 
and  may  ultimately  be  able  to  convince  men  who  shut  their  eyes  to  exclude  the 
light,  that  they  need  not  feel  surprise,  to  find  their  blind  boot}-  turning  to  ashes 
in  their  grasp ;  and  the  interests  of  the  widow  and  the  fatherless  finally  regarded 
as  of  more  value,  in  the  public  esteem,  than  the  accumulation  of  gain,  by  in- 
direction and  evasion,  intended  to  defraud  them  of  their  last  penny. 

•153  ,  ' 


§  46  O.  TRANSFER   EXEMPT   FROM   CREDITORS.  155 

explained  conclusive  evidence  of  a  secret  trust,  and  therefore,  as 
matter  of  law,  fraudulent  and  void  as  to  creditors.^ 

2.  But  in  the  case  last  cited  it  is  said  that  when  ^  the  transfer 
is  made  at  a  distance  from  the  office  and  the  old  certificate  sur- 
rendered and  a  new  one  given  by  a  transfer  agent  residing  in  a 
neighboring  state,  proof  that  the  proper  evidence  of  such  transfer 
was  sent  by  the  earliest  mail  to  the  keeper  of  the  stock  record  to 
be  duly  entered,  although  not -received  until  an  attachment  had  in- 
tervened, would  be  a  sufficient  explanation  of  the  want  of  delivery 
and  the  transfer  would  be  good  against  the  creditor.  Any  un- 
reasonable delay  in  perfecting  the  record  title  to  such  shares  leaves 
them  liable  to  the  claims  of  creditors. 

3.  But  where  the  charter  of  the  company  or  the  general  laws  of 
the  state  contain  any  specific  restriction  or  requirement  in  regard 
to  the  transfer  of  shares,  it  must  be  complied  with  or  the  title  will 
not  pass.'* 

4.  In  a  recent  case  in  New  Jersey,^  it  seems  to  be  considered 
that  nothing  more  is  required  to  make  an  effi3ctual  transfer  of  stock 
in  a  bank,  even  as  against  creditors,  than  an  assignment  of  *  the 
certificates  and  a  delivery  to  the  assignee,  and  that  this  will  be 
regarded  as-  effectual  against  an  attaching  creditor  without  notice, 
even  where  the  charter  of  the  company  declares  the  stock  personal 
estate,  and  provides  that  "  it  shall  be  transferable  upon  the  books 
of  the  corporation,"  and  also,  "  that  books  of  transfer  of  stock  shall 
be  kept,  and  shall  be  evidence  of  the  ownership  of  said  stock  in  all 
elections  and  other  matters  submitted  to  the  decision  of  the  stock- 
holders." 

'  Pinkcrton  v.  ^Manchester  &  Lawrence  Railw.,  1  Am.  Law  Reg.  N.  S..96; 
8.  c.  42  N.  H.  424. 

•  Fisher  v.  Essex  Bank,  5  Gray,  373 ;  Sabin  v.  Bank  of  Woodstock,  21  Vt. 
862;  Pittsburgh  &  Connellsville  R.  Co.  r.  Cl&rke,  29  Penn.  St.  146. 

'  Broadway  Bank  r.  McEIrath,  2  Beasley,  24.  We  think  it  proper  to  say* 
that  there  is  considerable  difference  in  the  decisions  of  the  different  states  as  to 
the  point  of  time  from  which  the  transfer  of  equitable  titles  is  to  be  reckoned,  as 
between  purchasers  for  value  and  creditors.  It  is  generally  considered  that  the 
transfer  takes  effect  from  the  date  of  notice  to  the  trustee,  who  holds  the  legal 
title,  subject  to  all  equities,  and  these  do  not  attach  ordinarily  until  after  notice 
brought  home  to  the  trustee.  Some  of  the  states  regard  the  equitable  rights  of 
the  purchaser  as  dating  from  the  period  of  the  actual  purchase,  provided  notice 
to  the  trustee  be  given  within  reasonable  time  after.  We  have  discussed  the 
question  and  the  cases,  to  some  extent,  in  Rice  v.  Courtis,  32  Vt.  460 ;  1  Story 
Eq.  Ja.  400  b,  Redf.  Ed. 

•154 


156 


ASSESSMENTS   OR  CALLS. 


CH.  IX. 


•CHAPTER   IX. 


ASSESSMENTS   OR  CALLS. 


SECTION    I. 


Party  liable  for  Calls. 


1.  The  party  upon  the  register  liable  for  calls. 

2.  Bankrupts  remain  liable  for  calls. 

8.   Cestuis  que  trust  not  liable  for  calls  in 
law  or  equity. 


4.  Trustee  compelled  to  pay  for  shares. 

5.  One  on  registry  may  show  his  name  im- 

properly placed  there. 


§  47.  1.  It  seems  to  be  settled  law  that  the  registered  owner  of 
railway  shares  is  liable  for  all  calls  thereon,  so  long  as  his  name 
remains  upon  the  register.^  The  effect  of  the  transfer  of  railway 
scrip  is  only  to  convey  an  equitable  interest  in  the  shares,  with  the 
right  to  have  the  shares  formally  assigned  to  him,  and  his  name 
entered  upon  the  register  as  a  shareholder.^ 

2.  In  case  of  bankruptcy,  the  bankrupt  remains  liable  for  all 
calls,  unless  the  names  of  the  assignees  are  registered  on  the  books 
of  the  company,  as  this  is  not  regarded  as  a  debt  *  payable  in  future, 
and  which  may  be  proved  under  the  commission. ^ 

•  Midland  Great  "Western  Railw.  Co.  v.  Gordon,  5  Railw,  C.  76  ;  s.  c.  16  M. 
&  W.  804;  Mangles  v.  Grand  ColUer  Dock  Co.,  10  Sim.  519 ;  s.  c.  2  Railw.  C. 
359 ;  Sayles  ».  Blane,  14  Q.  B.  205 ;  8.  c.  6  Railw.  C.  79 ;  West  CornwaU  R.  v. 
Mowatt,  15  Q.  B.  521.  In  this  case  it  was  said,  even  if  the  transaction  by  which 
the  title  to  the  stock  and  the  registry  of  defendant's  name  were  made,  were  illegal, 
it  could  not  avail  him  in  an  action  for  calls.     See  post,  §  236. 

Long  Island  R.  Co.,  19  Wend.  37;  Mann  r.  Currie,  2  Barb.  294;  Hartford 
&  N.  H.  R.  V.  Boorman,  12  Conn.  530 ;  Mann  v.  Cooke,  20  Conn.  178 ;  Rose- 
velt  V.  Brown,  1  Kernan,  148.  The  registry-book  of  shareholders  is  prima  facie 
evidence  of  the  liability  to  calls,  of  those  whose  names  appear  upon  it,  although 
irregularly  kept.  Birmingham  R.  v.  Locke,  1  Q.  B.  256 ;  London  Grand  J.  R. 
V.  Freeman,  2  M.  &  G.  606 ;  Same  v.  Graham,  1  Q.  B.  271 ;  Aylesbury  R.  v. 
Thomson,  2  Railw.  C.  668.  This  last  case  holds  that  the  purchaser  of  shares 
is  only  liable  for  calls  made  after  his  name  is  upon  the  register.  The  company 
may,  by  its  charter,  and  probably  by  a  by-law,  provide  that  the  original  sub- 
scriber shall  be  holden  for  all  calls,  or  until  a  certain  amount  is  paid  in.  Vicks- 
burg,  Shreveport,  &  Texas  Railw.  v.  McKeen,  14  La.  Ann.  724. 

*  South  Staffordshire  R.  v.  Burnside,  2  Eng.  L.  &  Eq.  418 ;  s.  c.  5  Exch. 
129 ;  6  Railw.  C.  611. 

*  155,  156 


§  47.  PARTY  LIABLE  FOB  CALLS.  157 

3,  The  trustee  of  shares,  whose  name  appears  upon  the  books  of 
the  company,  is  alone  liable  for  calls,  and  the  company  have  uo 
remedy  in  equity  for  calls  against  the  cestui  que  trust.^ 

But  if  a  shareholder  when  the  company  is  in  extremis  makes  a 
colorable  transfer  to  an  irresponsible  person,  it  will  not  be  held  to 
relieve  him  from  liability  to  contribute.*  But  in  the  absence  of 
fraud  or  malafdes,  the  cestui  que  trust  cannot  be  subjected  to  a  call, 
although  he  may  be  compelled  to  indemnify  his  trustee.^  But  it 
seems  finally  to  be  settled  in  the  English  Court  of  Chancery,  that 
a  shareholder  may  transfer  his  shares  in  an  abortive  company, 
where  such  shares  pass  by  delivery  to  an  insolvent  person,  for  the 
purpose  of  getting  rid  of  liability  to  contribute  to  its  responsibili- 
ties, provided  the  transaction  be  a  real  one,  and  not  a  false  or 
hollow  contrivance.*  But  where  the  transaction  exhibits  no  motive 
except  escape  from  the  liability  of  the  company,  and  especially 
where  it  transpires  after  the  company  is  publicly  declared  insol- 
vent, it  will  be  regarded  as  merely  colorable  and  not  valid.'''  But 
where  the  holder  of  shares  threatened  to  put  the  company  into 
insolvency  unless  the  directors  would  find  some  one  to  purchase 
his  shares  and  give  him  an  indemnity,  which  was  done  twelve 
months  before  the  company  became  insolvent,  it  was  held  to  be 
a  valid  transfer .^  Trustees  under  a  will  are  properly  made  contri- 
butories.^ 

•  4.  The  trustee,  into  whose  name  the  cestui  que  trust  had  caused 
shares  to  be  transferred  by  deed,  reciting  that  the  price  of  the  same 
had  been  paid  to  the  vendor,  who  executed  the  deed,  may  never- 
theless be  compelled  to  make  good  such  price  to  the  vendor,  if  it 

»  The  Newiy,  W.  &  R.  R.  v.  Moss,  4  Eng.  L.  &  Eq.  84 ;  8.  c.  14  Beav.  64. 
But  where,  in  winding  up  the  affairs  of  a  company,  the  name  of  one  of  the  mem- 
bers, who  had  obtained  his  certificate  since  the  expenses  were  incurred,  was 
placed  among  the  contributories,  it  was  held  he  was  not  liable.  Chappie's  case, 
17  Eng.  L.  &  Eq.  616 ;  8.  c.  6  De  Gex  &  S.  400. 

•  Lund  ex  parte,  27  Beav,  465 ;  Hyam  ex  parte,  6  Jur.  N.  S.  181 ;  8.  c.  1  De 
G.  F.  &  J.  75.  See  also  De  Passes  case,  4  De  G.  &  J.  544 ;  Chinnock  ex  parte, 
1  Johns.  Eng.  Ch.  714.     Post,  §  242. 

»  Electric  Tel.  Co.  v.  Bunn,  6  Jur.  N.  S.  1223. 

•  Mexican  &  South  Am.  Co.  in  re,  2  De  G.  F.  &  J.  302 ;  Slater  a:  parte,  12 
Jur.  N.  S.  242. 

T  Electric  Tel.  Co.  m  re,  30  Beav.  143. 

•  Phoenix  Life  Assurance  Co.,  7  Law  T.  N.  S.  267. 

•  Drummond  ex  parte,  2  Gif.  189 ;  8.  c.  6  Jur.  N.  S.  908. 

•167 


158 


ASSESSMENTS   OR  CALLS. 


CH.  IX. 


were  not  in  fact  paid,  although  he  accepted  the  transfer  in  the  be- 
lief that  it  had  been  paid.^^^ 

5.  Notwithstanding  the  defendant's  name  appear  upon  the 
register  of  shares,  he  will  be  permitted,  in  a  suit  for  calls,  to 
show  that  it  was  illegally  placed  there,  and  without  his  authority. 
But  a  purchaser  of  shares,  or  even  an  original  subscriber,  cannot 
be  sued  for  calls,  under  the  English  statute,  until  his  name  is 
placed  on  the  registry."  But  one's  name  appearing  upon  the 
books  of  the  company  as  a  shareholder  is  prima  facie  evidence  of 
the  fact,  in  an  action  against  such  person  to  enforce  against  him 
the  personal  responsibility  of  a  stockholder  for  the  debts  of  the 
company.^  And  in  such  an  action  the  judgment  against  the  cor- 
poration \&  prima  fade  evidence  of  its  indebtedness  as  against  the 
stockholder.^ 

SECTION    II. 

CohraJUe  Subscriptions. 


1.  Colorable  svbscriptions  valid. 

2.  Dirtdon  mm/  be  compdUd  to  register  them. 

3.  Oral  evidence  to  vary  the  written  subscrip- 

tion inadmissible. 


4.  Register  evidence  abhough  not  made  in  the 

time  prescribed. 

5.  Confidential  subscription*  void. 


§  48.  1.  Equity  will  not  restrain  a  railway  company  from  en- 
forcing calls,  by  action  at  law,  upon  the  ground  that  one  of  the 
conditions  of  the  charter,  requiring  a  certain  amount  of  subscrip- 
tions of  stock  before  the  incorporation  took  effect,  had  not  been 
complied  with,  but  that  a  fraud  upon  the  provision  had  been  prac- 
tised by  means  of  colorable  subscriptions.  The  Court  of  Chancery 
regards  colorable  subscriptions,  made  in  the  course  of*  getting  a  bill 
through  the  House  of  Lords,  (to  comply  with  one  of  the  standing 
rules  of  that  house,  requiring  three-fourths  of  the  requisite  outlay 
to  be  subscribed  before  the  bill  passes,)  to  be  binding  upon  the 
directors  and  managers,  who  make  the  same,  and  that  they  are  in 
fact  valid  and  binding  subscriptions,  although  such  subscriptions 
were  made  with  the  purpose  of  being  subsequently  cancelled,  and 

">  Wilson  V.  Keating,  27  Beav.  121. 

"  Hodges  on  Railways,  101,  4th  ed.  Newry  &  Inniskillen  Railw.  v.  Edmunds, 
2  Exch.  118. 

"  Hoagland  c.  Bell,  S6  Barb.  57. 

•158 


§  48.  COLORABLE   SUBSCRIPTIONS.  159 

had  never  been  registered  upon  the  books  of  the  company,  or  any 
calls  made  upon  them. 

2.  It  is  within  the  proper  range  of  the  powers  of  a  court  of 
equity  to  compel  the  directors  to  register  such  shares  and  enforce 
the  payment  of  calls  upon  them.^ 

In  a  recent  case  ^  where  this  subject  came  under  discussion  in 
*  equity,  it  was  held  that  where  the  provisional  directors,  in  the  pro- 
cess of  carrying  a  bill  through  parliament,  proposed  to  the  con- 
tractor that  he  should  have  the  contract  for  the  company's  works, 
provided  he  would  accept  payment  partly  in  shares,  the  number  to 
be  settled  by  the  company's  engineer ;  but  contracted  for  him  to 
sign  for  a  sufficient  number  of  shares  to  make  up  the  amount  re- 
quired by  the  standing  orders  of  parliament,  which  was  630  of 
XIO  each,  which  he  accordingly  subscribed  and  the  bill  passed; 

•  '  Preston  r.  Grand  Collier  Dock  Co.,  11  Sim.  827;  8.  c.  2  Railw.  Co.  886; 
Mangles  c.  The  Same,  10  Sim.  519.  The  principle  of  these  cases  is  verj'  distinctly 
recognized  in  the  case  of  Blodgctt  v.  Morrill,  20  Vt.  609,  and  it  lies  at  the  founda- 
tion of  all  fair  dealing,  that  one  is  bound  by  his  own  representations,  upon  which 
he  had  purposely  induced  others  to  act,  although  at  the  time  he  did  not  intend  to 
be  himself  bound  by  them,  but  expected,  through  favor,  to  be  relieved  from  their 
performance.  See  also  Henry  v.  Vermilion  R.  Co.,  17  Ohio,  187.  But  if  one 
obtain  shares  in  a  distribution  by  commissioners  by  fraud,  he  may  be  compelled, 
in  equity,  to  surrender  them  to  other  subscribers,  to  whom  they  would  have  been 
awarded  but  for  such  fraud.     Walker  v.  Devereaux,  4  Paige,  229. 

A  subscription  to  the  stock  of  a  railway  made  in  the  common  form  upon  the 
books  of  the  company,  the  subscriber  at  the  time  of  subscription  taking  the  follow-  . 
ing  writing,  signed  by  the  clerk  of  the  company,  by  order  of  the  directors :  — 

"  In  consideration  that  Ebenezer  E will  subscribe  for  thirty  shares  in  the 

White  Mountains  Railway,  said  company  agree  to  release  him  from  twenty-five  of 
said  shares,  or  such  portion  of  said  twenty-five  shares,  as  he  may  within  one  year 
elect  to  withdraw  from  his  subscription,  and  if  he  has  been  assessed,  and  has  paid 
any  thing  on  said  shares,  that  he  electa  to  be  released  from,  that  these  payments 
shall  be  allowed  him,  on  the  shares  that  he  retains,  and  that  the  treasurer  shall 
regulate  his  stock  accounts  and  assessments  accordingly,"  is  a  valid  subscription  f 
for  the  thirty  shares,  it  having  been  understood,  at  the  time  of  making  the  sub- 
scription, between  the  subscriber  and  the  directors,  that  the  same  was  to  be  held 
out  to  the  public,  as  a  bona  fide  subscription  for  the  thirty  shares,  and  no  dis- 
closure made  of  the  writing  given  to  the  subscriber. 

It  was  held  that  the  agreement  to  release  the  subscriber  was  a  fraud  upon 
other  subscribers,  and  void,  and  the  subscription  may  be  enforced.  White 
Mountains  Railw.  r.  Eastman,  34  N.  11.  124 ;  Downie  v.  White,  12  Wise.  176. 

See  also  Conn.  &  Pass.  Rivers  R.  r.  Bailey,  24  Vt.  466 ;  Mann.  v.  Pentz,  2 
Sand.  Ch.  257;  Penobscot  &  Kennebec  R.  r.  Dunn,  39  Maine,  601. 

*  North  Shields  Quay  Co.  r.  Davidson,  4  Kay  &  J.  688. 

•  169 


160  ASSESSMENTS   OB  CALLS.  CH.  IX. 

but  when  the  contract  was  closed  he  was  to  take  but  300  shares, 
the  scheme  being  abandoned  before  the  works  were  commenced,  it 
was  held  that  the  arrangement  made  by  the  directors  with  the  con- 
tractor was  ultra  vires;  and  if  not  a  fraud  upon  the  orders  of 
parliament  it  was  void  as  against  such  subscribers  as  were  not 
privy  to  it ;  and  that  the  circumstance  of  the  contractor  having 
subscribed  the  deed  last  but  one,  and  the  last  subscriber  being 
privy  to  the  arrangement,  did  not  alter  the  rights  of  those  sub- 
scribers who  were  not  privy  to  it ;  and  that  the  contractor  was  liable, 
as  a  contributory,  for  the  entire  number  of  shares  for  which  he 
signed  the  deed. 

3.  Oral  evidence  is  inadmissible  to  vary  the  terms  of  a  sub- 
scription to  the  stock  of  a  railway  unless  it  tend  to  show  fraud  or 
mistake.^  But  where  the  subscriber  is  really  misled,  and  induced 
to  subscribe  for  stock,  upon  the  representation  of  a  state  of  facts 
*  in  regard  to  the  time  of  completing  the  road,  or  its  location,  made 
by  those  who  take  up  the  subscription,  and  in  good  faith,  and  upon 
proper  inquiry,  and  the  exercise  of  reasonable  discretion,  believed 
by  the  subscriber,  and  which  constitutes  the  prevailing  motive  and 
consideration  for  the  subscription,  and  which  proves  false,  it  would 
seem  that  the  contract  of  subscription  should  be  held  void,  both  in 
law  and  equity.* 

4.  When  the  statute  requires  the  registry  of  shares  to  be  made 

3  Wight  V.  Shelby  Railw.,  16  B.  Monroe,  6 ;  Blodgett  v.  Morrill,  20  Vt.  609 ; 
Kennebec  &  Portland  R.  v.  Waters,  34  Maine,  369.  But  mere  mistake,  or  mis- 
apprehension of  the  facts,  by  the  subscriber,  is  no  ground  of  relief  unless  it 
amount  to  fraud  and  imposition,  brought  about  by  some  agent  of  the  company. 
Hence  when  one  subscribed  for  shares  in  a  railway,  under  the  mistaken  belief 
that  he  might  forfeit  his  stock  at  will,  and  be  no  further  liable,  he  was  held  liable, 
notwithstanding  this  belief  was  the  result  of  assurances  made  by  the  person  taking 
the  subscription  at  the  time  of  its  being  made,  that  such  were  the  terms  of  sub- 
scription secured  by  the  charter,  such  assurances  being  founded  in  mistake,  and 
not  wilfully  false.  Railroad  Company  v.  Roderigues,  10  Rich.  (S.  C.)  278 ; 
N.  C.  Railw.  r.  Leach,  4  Jones  Law,  340.  It  is  here  said,  that  one  of  the  com- 
missioners, in  taking  subscriptions  to  the  stock  of  a  railway  company,  has  no 
right  to  give  any  assurances  as  to  the  line  of  location  which  will  be  adopted. 
And  if  the  location  is  different  from  that  provided  in  the  charter  of  the  com- 
pany, the  party  may  lose  the  right  to  object  to  paying  his  subscriptions  on  that 
ground,  unless  he  resort  to  mandamus  or  injunction,  at  the  earliest  convenient 
time.  Booker  ex  parte,  18  Ark.  338;  Brownlee  v.  Ohio,  Ind.  &  111.  Railw.,  18 
Ind.  68. 

*  Henderson  v.  Railway  Company,  17  Texas,  660. 
*  160 


§49. 


MODE  or  ENFORCING  PAYMENT. 


161 


within  a  limited  time,  such  requirement  is  regarded  as  merely 
directory,  and  the  registry,  although  not  made  within  the  pre- 
scribed time,  will  still  be  competent  evidence,  and  to  the  same  ex- 
tent as  if  made  within  the  time  required.^ 

,  5.  Where  subscriptions  are  made  under  an  agreement  that  they 
are  not  to  be  binding  unless  a  specified  sum  is  subscribed,  it  is 
essential  that  there  should  be  no  conditions  as  to  the  liability  of 
any  of  the  subscribers  not  applicable  to  all.  Confidential  subscrip- 
tions made  for  the  purpose  of  making  up  the  required  sum  are  a 
fraud  upon  the  other  subscribers ;  and  should  not  bo  treated  as 
valid  subscriptions.  Where  by  deducting  such  confidential  sub- 
scriptions the  required  sum  is  not  subscribed,  the  contract  of  sub- 
scription does  not  become  operative,  so  as  to  bind  the  subscribers. 
Parol  evidence  is  admissible  to  show  that  certain  of  the  sub- 
scriptions were  confidential  in  character  and  therefore  fraudu- 
lent.« 

•SECTION    IIL 

Mode  of  enforcing  Payment. 


1.  Subscription  to  indefinite  slock,  raises  no 

implied  promise  to  pay  the  amount  as- 
»e*sed. 

2.  If  sharet  are  definite,  subscription  implies 

a  promise  to  pay  assessments.    Right  of 

forfeiture  a  cumulative  remedy. 
8.    Whether  issuing  new  stock  will  bar  a  suit 

against  subscriber,  quaere. 
4.    It  would  seem  not. 
6.    But  the  requirements  of  the  charter  and 

general  laws  of  the  state,  must  be  strict- 


ly pttrsued  in  declaring  forfeiture  of 
stock. 

6.  Notice  of  sale  must  name  place. 

7.  Validity  of  calls  not  affected  by  miscon- 

duct of  directors  in  other  matters. 

8.  Proceedings  must  be  regular  at  date. 

9.  Acquiescence  will  estop  the  party,  often. 

10.  Forfeiture  of  shares. 

11.  Irregular  calls  must  be  dedared  void,  be- 

fore others  can  be  made  to  supply  the 
place. 


§  49.  1.  The  company  may  resort  to  all  the  modes  of  enforcing 
payment  of  calls  which  are  given  them  by  their  charter,  or  the  gen- 
eral laws  of  the  state,  unless  these  remedies  are  given  in  the  alter- 
native. But  the  principal  conflict  in  the  cases  seems  to  arise  upon 
the  point  of  maintaining  a  distinct  action  at  law  for  the  amount 
assessed.     Many  of  the  early  turnpike  and  manufacturing  compa- 

»  Wolverhampton  N.  W.  Co.  v.  Hawksford,  7  C.  B.  N.  S.  795 ;  6  Jur.  N.  S. 
632.  Affirmed  in  Exch.  Chamber,  10  W.  Rep.  163,  11  C.  B.  N.  S.  456,  8  Jur. 
N.  S.  844. 

•  New  York  Exchange  Co.  c.  De  Wolf,  81  N.  Y.  273. 

11  •  161 


162  ASSESSMENTS   OR   CALLS.  CH.  IX. 

nies,  in  this  country,  did  not  create  any  definite,  or  distinct  capi- 
tal stock,  to  consist  of  shares  of  a  definite  amount,  in  currency,  but 
only  constituted  the  subscribers  a  body  corporate,  leaving  them  to 
raise  their  capital  stock,  in  any  mode  which  their  by-laws  should 
prescribe.  And  in  some  such  cases,  the  charter,  or  general  laws 
of  the  state,  gave  the  company  power  to  assess  the  subscribers 
according  to  the  number  of  shares  held  by  each.  But  the  amount 
of  the  shares  was  not  limited.  Tlie  assessments  might  be  extended 
indefinitely,  according  to  the  necessities  of  the  company.  In  such 
cases,  where  the  only  remedy  given,  by  the  deed  of  subscription, 
the  charter  and  by-laws,  or  the  general  laws  of  the  state,  was  a 
forfeiture  of  the  shares,  the  courts  generally  held,  that  the  sub- 
scriber was  not  liable  to  an  action  in  personam  for  the  amount 
of  calls.^    And  this  seems  to  us  *  altogether  reasonable  and  just. 

*  Franklin  Glass  Co.  v.  White,  14  Mass.  286 ;  Andover  Turnpike  Co.  v. 
Gould,  6  Mass.  40;  Same  v.  Hay,  7  id.  102;  New  Bedford  Turnpike  Co.  v. 
Adams,  8  id.  138 ;  Bangor  House  Proprietary  v.  Hinckley,  3  Fairfield,  385,  388 ; 
Franklin  Glass  Co.  v.  Alexander,  2  New  Hamp.  380.  But  where  there  was  an 
express  promise  to  pay  assessments,  or  facts  from  which  such  an  undertaking 
was  inferable,  it  was  always  held,  even  in  this  class  of  cases,  that  an  action  will 
lie.  Taunton  &  South  Boston  Turnpike  Co.  v.  Whiting,  10  Mass.  327  ;  Bangor 
Bridge  Co.  v.  McMahon,  1  Fairfield,  478.  But  a  subscriber  to  the  stock  of  a 
turnpike  company,  who  promised  to  pay  assessments,  when  afterwards  the  course 
of  the  road  was  altered  by  law,  was  held  thereby  exonerated.  Middlesex  Turn- 
pike Co.  V.  Swan,  10  Mass.  384.  The  citation  of  cases  to  these  points  might  be 
increased  indefinitely,  but  it  is  deemed  useless,  as  these  propositions  have  never 
been  Ijuestioned.     Worcester  Turnpike  v.  Willard,  6  Mass.  80. 

The  following  cases  will  be  found  to  confirm  the  cases  cited  above.  Chester 
Glass  Co.  V.  Dewey,  16  Mass.  94 ;  Newburyport  Bridge  Co.  v.  Story,  6  Pick. 
45 ;  Salem  Mill-Dam  Co.  v.  Ropes,  6  Pick.  23 ;  Ripley  v.  Sampson,  10  id.  371 ; 
Cutler  V.  Middlesex  Factory  Co.,  14  id.  483.  This  general  question  of  the 
responsibility,  assumed  by  those  who  consent  to  become  shareholders  in  a  cor- 
poration, where  the  shares  are  not  fully  paid  up,  is  considerably  discussed,  by 
Allen,  J.,  in  a  recent  case  in  the  N.  Y.  Court  of  Appeals,  where  the  facts  being 
peculiar,  it  was  held  the  shareholder  incurred  no  obligation  to  pay  the  balance 
due  upon  the  shares  if  he  elected  to  abandon  them.  Seymour  v.  Sturgess,  26  N. 
Y.  134.  But  there  is  no  implication  of  duty  to  pay  the  amount  of  a  subscription 
to  the  stock  of  a  railway  company,  especially  where  the  terms  of  subscription 
declare  payment  to  be  made  in  such  instalments  as  shall  be  required  by  the 
board  of  directors,  unless  the  declaration  and  proof  show  that  an  instalment  had 
been  required  by  the  directors.  Gebhart  v.  Junction  Railw.  Co.,  12  Ind.  484; 
McClasky  v.  Grand  Rapids  &  Ind.  Railw.  Co.,  16  Ind.  96.  Where  by  the  charter 
of  an  eleemosynary  corporation  subscriptions  were  allowed  to  be  taken,  and  the 
subscriber,  by  securing  the  amount  and  paying  the  interest  promptly,  was  entitled 
•162 


§  49.  MODE  OP  ENFORCING   PAYMENT.  163 

For  if  a  subscription  to  an  indefinite  stock  created  a  personal  obli- 
gation to  pay  all  assessments  made  by  the  company  upon  such 
stock,  it  would  be  equivalent  to  a  personal  liability  of  tlie  stock- 
holders for  the  debts  and  liabilities  of  the  company ;  as  we  shall 
see,  hereafter,  that  the  directors  of  a  corporation  may  be  compelled, 
by  writ  of  mandamus,  to  make  calls  upon  the  stock,  for  the  pur- 
pose of  paying  the  debts  of  the  company .^ 

2.  But  where  the  stock  of  the  company  is  defined  in  its  char- 
ter, and  is  divided  into  shares  of  a  definite  amount  in  money,  a 
*  subscription  for  shares  is  justly  regarded  as  equivalent  to  a  prom- 
ise to  pay  calls,  as  they  shall  be  legally  made,  to  the  amount  of 
the  shares.  This  may  now  be  regarded  as  settled,  both  in  this 
country  and  in  England,  and  that  the  power  given  the  company 
to  forfeit  and  sell  the  shares,  in  cases  where  the  shareholders  fail 
to  pay  calls,  is  not  an  exclusive  but  a  cumulative  remedy,  unless 
the  charter,  or  general  laws  of  the  state,  provide  that  no  other 
remedy  shall  be  resorted  to  by  the  company .^ 

to  save  the  payment  of  the  principal,  it  was  held  this  was  matter  of  indulgence  to 
the  subscriber,  to  which  he  could  only  entitle  himself  by  proving  his  compliance 
with  the  conditions  upon  which  the  indulgence  was  granted.  Denny  v.  North 
W.  Christian  University,  16  Ind.  220.  The  undertaking  of  subscribers  to  a 
joint-stock  will  be  held  several  and  not  joint,  without  express  words.  Price  v. 
Grand  Rapids  &  I.  R.  Co.,  18  Ind.  137.  The  law  by  which  a  corporation  exists 
and  acts  forms  part  of  the  contract  of  subscription.  Hoagland  v.  Cin.  &  F.  W. 
R.  Co.,  18  Ind.  452. 

•  Post,  §  60. 

'  Hartford  &  New  Haven  Railway  Co.  v.  Kennedy,  12  Conn.  499.  In  this 
case  it  was  held,  that,  from  the  relation  of  stockholder  and  company  thus  created, 
a  promise  was  implied  to  pay  instabnents ;  that  the  clause  authorizing  a  sale  of  the 
stock  was  merely  cumulative ;  and  that,  whether  the  company  resorted  to  it  or 
not,  the  personal  remedy  against  the  stockholder  remained  the  same.  The  same 
points  are  confirmed  by  the  same  court,  in  Mann  v.  Cooke,  20  Conn.  178.  And 
in  Danbury  Railw.  Co.  v.  Wilson,  22  Conn.  435,  the  defendant  was  held  liable 
for  calls  upon  a  subscription  to  the  stock  of  a  company  whose  charter  had  expired, 
and  been  revived  by  the  active  agency  of  defendant.  See  also  Dayton  r.  Borst, 
81  N.  Y.  435 ;  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491. 

All  the  cases,  with  slight  exceptions,  hold,  that  where  the  subscription  is  of 
such  a  character  as  to  give  a  personal  remedy  against  the  subscriber,  in  the 
absence  of  all  other  specific  redress,  the  mere  fact  that  the  company  have  the 
power  to  forfeit  the  shares  for  non-payment  of  calls,  will  not  defeat  the  right  to 
enforce  the  payment  of  calls  by  action.  Goshen  Turnpike  Co.  v.  Hurtin,  9 
Johns.  217 ;  Dutchess  Cotton  Manufacturing  Co.  r.  Davis,  14  Johns.  238 ;  Troy 
T.  Co.  V.  McChesney,  21  Wend.  296;  Northern  R.  c.  Miller,  10  Barb.  260; 
Plank  Road  Co.  v.  Payne,  17  Barb.  667.    In  this  last  case  it  was  held  to  be 

•  163 


164  ASSESSMENTS   OR   CALLS.  CH.  IX. 

*  3.  The  question  in  the  English  cases  seems  to  be,  whether, 
after  the  forfeiture  of  the  shares,  and  a  confirmation  of  the  same 

matter  of  intention  and  construction,  whether  the  remedies  were  concurrent 
and  cumulative,  or  in  the  alternative.  And  in  Troy  &  Boston  R.  v.  Tibbitts, 
18  Barb.  297,  it  is  said  to  be  well  settled,  that  the  obligation  of  actual  payment 
is  created,  by  a  subscription  to  a  capital  stock,  unless  plainly  excluded  by  the 
terms  of  the  subscription,  and  that  the  forfeiture  is  a  cumulative  remedy.  Og- 
densburg  R.  &  C.  Railway  v.  Frost,  21  Barb.  541.  See  also  Herkimer  M.  &  H. 
Co.  V.  Small,  21  Wend,  273 ;  s.  c.  2  HiU,  127 ;  Sagory  v.  Dubois,  3  Sandf.  Ch. 
466 ;  Mann  v.  Currie,  2  Barb.  294 ;  Mann  v.  Pentz,  2  Sandf.  Ch.  257  ;  Ward  v. 
Griswoldville  Manuf.  Co.,  16  Conn.  593 ;  Lexington  &  West  Cambridge  R.  v. 
Chandler,  13  Met.  311 ;  Klein  v.  Alton  &  Sangamon  R.  13  Illinois,  514 ;  Ryder 
V.  Same,  id.  516 ;  Gayle  v.  Cahawba  R.  8  Ala.  586 ;  Beene  v.  Cahawba  &  M.  R. 
3  id.  660 ;  Spear  v.  Crawford,  14  Wend.  20 ;  Palmer  v.  Lawrence,  3  Sandf.  Sup. 
Ct,  161,  where  Duer,  J.,  says  the  law  must  now  be  considered  as  settled,  "  that 
the  obligation  of  actual  payment  is  created  in  all  cases,  by  a  subscription  to  a 
capital  stock,  unless  the  terms  of  subscription  are  such  as  plainly  to  exclude  it." 
ElysviUe  v.  O'Kisco,  5  Miller,  152 ;  Greenville  &  Columbia  R.  v.  Smith,  6  Rich. 
91 ;  Charlotte  &  S.  C.  R.  R.  Co.  v.  Blakely,  3  Strob.  245 ;  Banet  v.  Alton  & 
Sangamon  R.,  13  Illinois,  504,  514;  Hightower  v.  Thornton,  8  Georgia,  486; 
Freeman  r.  Winchester,  10  Sm.  &  M.  577 ;  Tar  River  Nav.  Co.  v.  Neal,  3 
Hawks,  520;  Gratz  v.  Redd,  4  B.  Mon.  178;  Sebna  R.  v.  Tipton,  5  Ala.  787; 
Troy  &  R.  R.  v.  Kerr,  17  Barb.  581.  Wliere  the  statute  gives  an  election  to  the 
company  either  to  forfeit  the  shares  for  non-payment  of  caUs,  or  to  sue  and  col- 
lect the  amount  of  the  shareholder,  it  was  held  that  no  notice  of  such  election 
was  necessary  to  be  given  before  suit  brought.  New  Albany  &  Salem  R.  v. 
Pickens,  5  Ind.  247.  The  terms  of  the  charter  must  be  pursued  where  they  pro- 
vide specifically  for  the  redress  for  non-payment  of  caUs.  As  if  the  shareholder 
is  made  liable  only  for  deficiency  after  forfeiture  and  sale  of  the  stock.  Grays  v. 
Turnpike  Co.,  4  Rand.  578;  Essex  Bridge  Co.  v.  Tuttle,  2  Vt.  393.  But  some 
of  the  American  cases  seem  to  hold,  that  a  corporation  has  no  power  to  enforce 
the  payment  of  calls,  against  a  subscriber  for  stock,  imless  upon  an  express 
promise,  or  some  express  statutory  power,  and  that  a  subscription  for  the  stock 
is  not  equivalent  to  an  express  promise  to  pay  calls  thereon  to  the  amount  of  the 
shai^s.  Kennebec  &  Portland  R.  v.  Kendall,  31  Maine,  470.  But  this  class  of 
cases  is  not  numerous,  and  is,  we  think,  unsound.  See  also  Allen  v.  Mont- 
gomery R.,  11  Ala.  437.  It  has  been  held,  that  aft^r  the  forfeiture  is  declared, 
the  company  cannot  longer  hold  the  subscriber  liable.  Small  v.  Herkimer  M. 
&  H.  Co.  2  Comst.  330.  So  if  the  company  omit  to  exercise  their  power  of  for- 
feiture, as  the  successive  defaults  occur,  until  all  the  calls  are  made,  it  thereby 
loses  its  remedy  by  sale.  Stokes  v.  The  Lebanon  &  Sparta  Turnpike  Co.,  6 
Humph.  241.  See  also  Harlaem  Canal  Co.  t\  Seixas,  2  Hall,  504 ;  Delaware 
Canal  Co.  v.  Sansom,  1  Binney,  70. 

The  fact  that  the  commissioners  have  by  the  charter  an  option  to  reject  sub- 
scriptions for  stock,  does  not  make  them  less  binding,  unless  they  are  so  rejected. 
Connecticut  &  Passumpsic  R.  R.  v.  Bailey,  24  Vt.  465.     An  agreement  made  at 
the  time  of  subscription  inconsistent  with  its  terms,  and  resting  in  oral  evidence 
*  164 


§  49.  MODE  OF  ENFORCING   PAYMENT.  165 

*  by  the  company,  and  tlie  issuing  of  new  stock  in  lieu  of  the  for- 
feited shares,  the  subscriber  is  still  liable  for  any  deficiency.  The 
cases  all  regard  him  as  liable,  under  the  English  statutes,  to  a 
personal  action,  until  the  confirmation  of  the  forfeiture  of  his  stock.* 
4.  But  in  a  late  case,  in  the  House  of  Lords,^  it  seems  to  have 

merely,  cannot  be  received  to  defeat  the  subscription.  lb.  In  a  late  case 
in  Kentucky  this  subject  is  very  elaborately  discussed  by  the  counsel,  and,  as 
it  seems  to  us,  very  wisely  and  verj*  justly  disposed  Of  by  the  court.  McMil- 
lan r.  Maysville  &  Lexington  Railway  Co.,  15  B.  Monroe,  218.  It  was  there 
held,  that  subscriptions  to  the  stock  of  a  railway  company,  like  other  con- 
tracts, should  receive  such  construction  as  will  carry  into  effect  the  probable 
intention  of  the  parties.  That  the  stock  subscribed  was  to  be  the  means  by  which 
the  road  should  be  constructed,  and  hence,  that  a  subscription  for  stock,  on  con- 
dition that  the  road  should  be  so  "  located  and  constructed  as  to  make  the  town 
of  Carlisle  a  point,"  imposed  upon  the  subscribers  the  duty  to  pay,  upon  the  loca- 
tion of  the  road  in  that  place,  and  that  the  construction  of  the  road  was  not  a 
condition  precedent  to  the  right  to  recover  for  calls  on  the  stock.  See  also  New 
Hampshire  Central  R.  r.  Johnson,  10  Foster,  390;  South  Bay  Meadow  Dam 
Co.  r.  Gray,  30  Maine,  547 ;  Greenville  &  Columbia  R.  r.  Cathcart,  4  Rich.  89  ; 
Danbur}-  &  Norwalk  R.  r.  Wilson,  22  Conn.  435.  An  agreement  to  take  and 
fill  shares  in  a  railway  company,  is  an  agreement  to  pay  the  assessments  legally 
made.  Bangor  Bridge  Co.  r.  McMahon,  10  Maine,  478 ;  Buckfield  Br.  R.  r. 
Irish,  39  id.  44 ;  P.  &  K.  R.  r.  Dunn,  id.  587 ;  Penobscot  R.  c.  Dummer,  40 
Maine,  172 ;  White  Mountains  Railw.  v.  Eastman,  34  N.  H.  124.  So,  too,  an 
agreement  to  take  shares  before  the  act  of  incorporation  is  obtained,  creates  an 
implied  duty  to  pay  calls  duly  made  thereon.  Buffalo  &  N.  Y.  City  Railw. 
r.  Dudley,  4  Keman,  336.  The  general  subject  is  discussed  somewhat  at  large 
in  this  case,  and  the  results  arrived  at  confirm  the  doctrines  laid  down  in  the 
text.     Rensselaer  &  W.  PI.  Rd.  Co.  r.  Barton,  16  N.  Y.  457. 

The  same  rule  is  mentioned  in  Fry^s  Exrs.  v.  Lex.  &  Big.  S.  Railw.,  2  Met. 
(Ky.)  314,  where  the  question  of  the  extent  of  implied  obligation  assumed  by  sub- 
scription to  the  capital  stock  of  a  corporation  is  very  fully  and  fairly  illustrated. 

*  Great  Northern  R.  r.  Kennedy,  4  Exch.  417.  So  the  allottees  of  shares  in 
a  projected  railway  company  are  made  liable  for  a  proportionate  share  of  the 
expense.  UpfiU's  case,  1  Sim.  N.  S.  396 ;  8.  c.  1  Eng.  L.  &  Eq.  13 ;  The  Direct 
Shrewsbury  &  Leicester  Railway  Co.,  in  re,  1  Sim.  N.  S.  281 ;  8.  c.  7  id.  28; 
London  &  B.  R.  v.  Fairclough,  2  M.  &  G.  674 ;  Edinburgh  L,  &  N.  H.  R.  t>. 
Hebblewhite,  6  M.  &  W.  709 ;  s.  c.  2  Railw.  C.  237 ;  Birmingham,  Bristol  & 
Th,  J.  R.  V.  Locke,  1  Q.  B.  256 ;  8.  c.  2  Railw.  C.  867  ;  Railway  Co.  v.  Graham, 
1  Ad.  &  Ellis  (N.  8.),  271 ;  Huddersfield  Canal  Co.  r.  BucUey,  7  T.  R.  36.  It 
has  been  held,  that  a  shareholder  cannot  absolve  himself  from  calls  by  paying 
the  directors  a  sum  of  money  for  his  discharge,  even  though  the  money  be 
accepted,  and  the  shares  transferred.  Bennett  ex  parte,  18  Beav.  339 ;  s.  c.  6 
De  G.  M.  &  G.  284.     See  alao  §  4,  ante. 

»  Inglis  r.  Great  Northern  R.,  1  McQu.  H.  L.  1112 ;  8.  c.  16  Eng.  L.  &  F^i.  65. 
See  also  Peoria  &  Oquawka  R.  c.  Elting,  17  111.  429 ;  Cross  c.  MiU  Co.,  17  111.  64. 

•  166 


166  ASSESSMENTS   OR   CALLS.  CH.  IX. 

been  settled,  upon  great  consideration,  that  where  the  charter  or 
general  statutes  give  the  right  to  forfeit  the  shares,  or  to  collect 
the  amount  of  the  shareholder,  and  the  forfeiture,  sale,  and  cancel- 
lation of  the  shares,  do  not  produce  the  requisite  amount,  the 
company  may  issue  new  shares  for  the  deficiency,  and  at  the  same 
time  maintain  an  action  for  it,  against  the  former  owner. 

*  5.  It  seems  to  be  well  settled,  that  to  entitle  the  company  to  sue 
for  calls,  the  provisions  of  their  charter,  and  of  the  general  laws 
of  the  state,  must  be  strictly  pursued.  And  if  the  shares  have 
been  forfeited  and  sold  without  pursuing  all  the  requirements,  in 
such  case  provided,  no  action  will  lie  to  recover  the  balance  of  the 
subscription.^  And  if  the  shares  be  sold  for  the  non-payment  of 
several  assessments,  one  of  which  is  illegal,  the  corporation  cannot 
recover  the  remainder  of  tlfe  subscription.'^  But  where  the  by- 
laws of  the  company  prescribe  a  specific  mode  of  notice  to  the 
delinquent,  through  the  mail,  of  the  time  and  place  of  sale,  this  is 
not  to  be  regarded  as  exclusive,  but  other  notice  which  reaches  the 
party  in  time  will  be  sufficient.^ 

But  in  a  recent  case  ^  the  law  in  regard  to  proceedings  in  forfeit- 
But  where  the  deed  of  settlement  gave  the  right  to  forfeit  the  shares  at  once, 
or  to  enforce  the  payment,  if  they  should  think  fit,  it  was  held,  that  a  judgment 
for  the  amount  due  is  a  bar  to  any  subsequent  forfeiture,  Giles  v.  Hutt,  3  Exch. 
18.  And  where  the  charter  of  the  company  provided,  that  the  shares  of  a  de- 
linquent shareholder  "  shall  be  liable  to  forfeiture,  and  the  company  may  declare 
the  same  forfeited  and  vested  in  the  company,"  it  was  held  the  option,  in  declar- 
ing such  forfeiture,  was  in  the  company,  and  not  in  the  shareholders.  Railway 
Company  v.  Rodrigues,  10  Rich.  (S.  C.)  278. 

*  Portland,  Saco,  &  Portsmouth  Railw.  v.  Graham,  11  Met.  1. 
^  Stoneham  Branch  R.  Co.  v.  Gould,  2  Gray,  277. 

®  Lexington  &  West  Cambridge  Railw.  v.  Chandler,  13  Met.  311.  And  where 
the  charter  required  notice  of  the  instalment  three  weeks  prior  to  the  same  be- 
coming due,  it  was  held  pHma  facie  evidence  of  compliance  by  producing  the 
publication,  and  oral  evidence  of  its  being  repeated  the  requisite  number  of 
times,  without  producing  all  the  papers.  Unthank  v.  Henry  County  Tump. 
Co.,  6  Porter  (Ind.),  125.  And  in  a  later  case,  Anderson  v.  The  Ohio  & 
Miss.  Railw.  Co.  14  Ind.  169,  where  the  charter  limited  the  amount  of  calls 
to  ten  per  cent  per  annum  upon  subscriptions  to  stock,  and  ten  per  cent  had 
been  paid,  a  call  was  held  sufficient  without  specifying  the  place  of  payment  or 
the  per  cent  to  be  paid,  only  five  remaining  within  the  power  of  the  directors  to 
call  for,  and  the  notice  fixing  the  time  and  place  of  payment, 

*  Lewey's  Island  Railw.  v.  Bolton,  48  Me.  451.  The  rules  of  law  as  to 
what  is  requisite  to  constitute  a  valid  subscription  to  a  stock  in  a  railway  com- 
pany and  to  justify  calls,  are  much  considered  in  the  recent  case  of  Maltby  v. 
N,  W.  Va,  Railw,,  16  Md,  422. 

*  166 


§  49.  MODE   OP   ENFORCING  PAYMENT.  167 

ore  of  shares  is  held  very  strictly.  It  is  here  considered  that 
notice  must  be  given  in  the  precise  time  and  in  the  exact  form  re- 
quired by  statute,  and  that  the  sale  must  in  all  respects  correspond 
precisely  with  the  requirements  of  the  provisions  of  the  law.  The 
rule  is  carried  so  far  here  that  posting  notice  in  a  public  place  was 
held  no  sufficient  compliance  with  the  law  requiring  it  to  be  in  a 
"  conspicuous  "  place  ;  and  it  was  here  considered  that  subscrip- 
tions to  preferred  stock  could  not  be  reckoned  to  make  up  the 
requisite  amount  of  capital  to  enable  the  corporation  to  go.  into 
operation. 

6.  But  notice  that  shares  in  a  railway  corporation  will  be  sold 
*  for  non-payment  of  assessments  on  a  day  fixed,  and  by  an  auc- 
tioneer named,  who  is  and  has  long  been  an  auctioneer  in  the 
place  at  which  the  notice  bears  date,  is  insufficient  if  it  do  not 
name  the  place  of  sale.** 

7.  The  validity  of  calls  cannot  be  called  in  question  upon  the 
ground  that  the  directors  making  the  same  are  acting  in  the  inter- 
est and  for  the  benefit  of  a  rival  company,  and  have  in  consequence 
unnecessarily  retarded  the  construction  of  the  company's  works." 
But  the  directors  must  be  duly  appointed.^ 

8.  And  the  proceedings  in  making  the  calls  must  have  been 
substantially  in  conformity  with  the  charter  and  by-laws  of  the 
company  and  the  general  laws  of  the  state  at  the  time  of  making 
the  same.  Any  subsequent  ratification  by  the  directors  of  an  in- 
formal call  will  only  give  it  effect  from  the  date  of  the  ratifica- 
tion.*^ 

9.  A  subscriber  who  has  executed  the  deed  of  settlement,  pur- 
chased shares  and  received  dividends  upon  the  same,  is  not  at 
liberty  to  object  to  their  validity  upon  the  ground  that  the  com- 
pany were  by  the  deed  of  settlement  authorized  to  issue  shares  for 
£100,  and  these  were  issued  as  half  shares  at  £50 ;  this  acqui- 
escence estops  him  from  doing  so.** 

10.  It  seems  that,  unless  the  constitution  of  the  corporation  or 
the  general  laws  of  the  state  contain  a  provision  justifying  a  for- 

'•  Lexington  &  West  Cambridge  Railway  r.  Staples,  6  Gray,  620. 
»  Orr  V.  Gl.  A.  &  M.  J.  Railw.,  3  McQu.  Ho.  Lds.  799 ;  s.  c.  6  Jur.  N.  S.  877. 
»  H.  B.  Coal  Co.  r.  Teague,  6  H.  &  N.  161 ;  8.  c.  6  Jur.  N.  S.  275. 
»  Cornwall  G.  C.  M.  Co.  v.  Bennett,  6  H.  &  N.  423 ;  8.  c.  6  Jur.  N.  S.  639  ; 
Anglo  California  G.  M.  Co.  v.  Lewis,  6  H.  &  N.  174 ;  8.  c.  6  Jur.  N.  S.  1376. 
'«  HuU  Flax  &  Cotton  Co.  r.  WeUesley,  6  H.  &  N.  38. 

♦  167 


168 


ASSESSMENTS   OR   CALLS. 


CH.  IX. 


feiture  of  shares,  it  is  not  competent  for  the  majority  of  the  share- 
holders by  prospective  resolution  to  establish  a  regulation  whereby 
the  shares  shall  be  forfeited  upon  failure  to  comply  with  the  re- 
quirements of  such  resolution.^ 

11.  It  is  no  valid  reason  for  making  more  calls  than  are  justified 
by  the  constitution  and  laws  affecting  the  question,  that  some  of 
the  calls  were  not  regularly  made  and  were  therefore  void,  and 
were  not  paid  by  the  defendant.  It  should  appear  that  *  such  irreg- 
ular calls  had  been  declared  void,  otherwise  the  directors  may  have 
secured  most  of  the  money  demanded  by  them.^^ 


SECTION   IV. 


Creditors  may  compel  Payment  of  Subscriptions. 


1 .  Company  compelled  to  ceiled  of  subscribers 
by  mandamus. 

2-4.  Ainount  due  from  subscribers,  a  trust- 
fund  for  the  benefit  of  creditors. 

6.   If  a  state  oum  the  stock  it  unll  be  the  same. 

6,  7.  A  diversion  of  the  funds  from  creditors 
is  a  violation  of  contract  on  the  part  of 
the  company,  and  a  state  law  authorizing 
it  invalid. 


8,  9.    The  general  doctrine  above  stated  found 
in  many  American  cases. 

10.  Judgment   creditors  may  bring  bill   in 

equity. 

11.  Promoters  of  railways  liable  as  partners, 

for  expenses  of  procuring  charter, 

12.  Railway  company  may  assign  calls  before 

due,  in  security  for  bona  fide  debt.  No 
notice  required  to  perfect  assignment 
against  attachments  or  judgment  liens. 


§  50.  1.  By  the  present  English  statute,  the  creditors  of  a  com- 
pany may  recover  their  judgment  debts,  against  shareholders,  who 
have  not  paid  the  full  amount  of  their  shares  to  the  extent  of  the 
deficiency.^  Before  this  statute,  it  was  considered  that  a  writ  of 
mandamus  would  lie,  to  compel  the  company  to  make  and  enforce 
calls  against  delinquents.^ 

2.  In  this  country  this  question  has  arisen,  not  unfrequently,  in 

"  Barton's  case,  4  De  Gex  &  J.  46. 

'«  WeUand  Railw.  v.  Berrie,  6  H.  &  N.  416. 

'  8  &  9  Vict.  c.  16,  §§  36,  37. 

»  Walford,  277 ;  Hodges,  106,  n.  («)  ;  Reg.  v.  Victoria  Park  Co.,  1  Q.  B. 
288,  where  the  opinion  of  the  court  very  clearly  intimates,  that  thfe  writ  of  man- 
damus will  lie,  to  compel  the  company  to  enforce  the  payment  of  calls,  where  it 
appears  that  judgments  against  the  company  remain  unsatisfied  for  want  of  as- 
sets. But,  under  the  circumstances  of  this  case,  it  was  not  deemed  requisite  to 
issue  the  writ. 

•168 


§  50.      CREDITORS   MAY  COMPEL  PAYMENT  OP  SUBSCRIPTIONS.  169 

the  case  of  insolvent  companies,  no  such  provision  existing  in  most 
of  the  states  as  that  of  the  English  Statute  just  referred  to. 

3.  This  subject  is  very  extensively  examined,  and  considered  by 
the  national  tribunal  of  last  resort,  in  a  case  of  much  importance 
and  delicacy,^  and  tlie  following  results  arrived  at :  — 

4.  On  the  dissolution  of  a  corporation,  its  effects  are  a  trust- 
fund,  for  the  payment  of  its  creditors,  who  may  follow  them,  *  into 
the  hands  of  any  one,  not  a  bona  fide  creditor,  or  purchaser  without 
notice  ;  and  a  state  law,  which  deprives  creditors  of  this  right,  and 
appropriates  the  property  to  other  uses,  impairs  the  obligation  of 
their  contracts,  and  is  invalid. 

5.  The  fact,  that  a  state  is  the  sole  owner  of  the  stock  in  a 
banking  corporation,  does  not  affect  the  rights  of  the  creditors. 

6.  The  capital  stock  of  a  company  is  a  fund  set  apart  by  its 
charter  for  the  payment  of  its  debts,  which  amounts  to  a  contract, 
with  those  who  shall  become  its  creditors,  that  the  fund  shall 
not  be  withdrawn  and  appropriated  to  the  use  of  the  owner,  or 
owners,  of  the  capital  stock. 

7.  A  law,  which  deprives  creditors  of  a  corporation  of  all  legal 
remedy  against  its  property,  impairs  the  obligation  of  its  contracts, 
and  is  invalid. 

8.  These  propositions,  with  the  exception  of  the  constitutional 
question,  in  regard  to  the  impairing  of  an  assumed  or  implied 
contract  with  the  creditors  of  the  corporation,  are  all  fully  sus- 
tained by  numerous  decisions  of  the  highest  authority  in  this 
country. 

9.  Thus  in  a  case  before  Mr.  Justice  Stori/y  in  the  Circuit 
Court,*  it  was  held,  that  the  capital  stock  of  a  corporation  is  a 
trust-fund,  for  the  payment  of  its  debts,  and  being  so,  it  may,  upon 
general  principles  of  equity  law,  be  followed  into  other  hands,  sO 
long  as  it  can  be  traced,  unless  the  holder  show  a  paramount 
title.^  And  in  cases  where  the  capital  stock  or  assets  of  a  corpo- 
ration have  been  distributed  to  the  stockholders  without  providing 
for  the  payment  of  its  debts,  a  court  of  equity  will  allow  the  cred- 
itors to  sustain  a  bill  against  the  shareholders,  to  compel  contri- 
bution to  the  payment  of  the  debts  of  the  company,  to  the  extent 
of  funds  obtained  by  them,  whether  directly  from  the  company,  or 

'  Curran  v.  State  of  Arkansas,  15  How.  U.  S.  804. 
*  Wood  r.  Dummer,  3  Mason,  308. 

»  Adair  v.  Shaw,  1  Sch.  &  L.  243,  261.    See  Dayton  r.  Borst,  31  N.  Y.  486. 

•  169 


170  ASSESSMENTS   OR   CALLS.  CH.  IX. 

through  some  substitution  of  useless  securities  for  those  which 
were  good.^ 

*  10.  Where  a  corporation  have  abandoned  all  proceedings 
under  their  charter,  from  insolvency,  and  still  owe  debts,  the  sub- 
scriptions to  the  capital  stock  not  being  all  paid,  a  judgment  cred- 
itor may  proceed,  in  equity,  against  the  delinquent  shareowners, 
there  being  no  longer  any  mode  by  which  calls  upon  the  stock 
may  be  enforced,  under  the  provisions  of  the  charter,  or  by  action 
at  law,  in  favor  of  the  companyJ 

11.  It  is  held  under  the  English  statutes,  in  regard  to  fully  regis- 
tered companies,  which  never  go  into  full  operation,  but  have  to 
be  closed  under  the  winding-up  acts,  that  a  shareholder,  who  has 
paid  up  the  full  amount  of  his  shares,  is  still  liable  to  pay  the 
necessary  calls,  to  defray  the  expenses  of  winding  up  the  company, 

«  Nathan  v.  Whitlock,  9  Paige,  152 ;  8.  c.  3  Edward's  Ch.  215.  But  it  has 
been  held,  that  the  distribution  of  the  capital  stock  among  the  shareholders, 
before  the  debts  of  the  company  are  paid,  and  leaving  no  funds  for  that  purpose, 
will  not  render  the  shareholders  liable  to  an  action  of  tort,  at  the  suit  of  the 
creditors  of  the  company,  there  being  no  such  privity  as  will  lay  the  foundation 
of  an  action  at  law,  even  in  states  where  no  court  of  chancery  existed.  Vose  v. 
Grant,  15  ]\Iass.  505.  In  equity  the  suit  may  be  in  the  name  of  the  receiver, 
Nathan  v.  Whitlock,  9  Paige,  152,  or  in  the  name  of  a  creditor,  suing  on  behalf 
of  himself  and  others,  standing  in  the  same  relation.  Mann  v.  Pentz,  3  Comst. 
415,  422.  And  all  the  shareholders,  who  have  not  paid  their  subscriptions,  should 
be  made  parties  to  the  bUl,  and  compelled  to  contribute  proportionally.     lb. 

The  same  principle  is  recognized  in  numerous  other  cases.  Mumma  v.  The 
Potomac  Co.,  8  Pet.  281 ;  Wright  v.  Petrie,  1  Sm.  &  M.  Ch.  282,  319  ;  Nevitt  v. 
Bank  of  Port  Gibson,  6  Sm.  &  M.  513 ;  Hightower  v.  Thornton,  8  Georgia 
486;  Fort  Edward,  &c.  Plank  Road  Co.,  v.  Payne,  17  Barb.  567;  Gillet  v. 
Moody,  3  Comst.  479.  This  case  is  where  the  bank,  of  which  the  plaintiflf  was 
receiver,  had  transferred  specie  funds  to  defendant,  in  exchange  for  his  own 
stock  in  the  bank.  The  transaction  was  held  illegal,  and  the  defendant  was 
compelled  to  refund,  for  the  benefit  of  the  creditors  of  the  bank.  And  where 
the  subscriber  to  a  bank,  which  became  insolvent,  assigned  all  his  interest  in  the 
bank,  it  was  held  not  to  exonerate  him  from  liability  to  assessments  upon  his 
subscription,  to  pay  debts  due  from  the  bank,  although  contracted  subsequent  to 
the  assignment.     Dayton  v.  Borst,  7  Bosw.  115. 

See  also  Morgan  v.  New  York  &  Albany  R.  10  Paige,  290. 

'  Henry  v.  The  Vermilion  &  Ashland  Railw.,  17  Ohio,  187.  See  also  Miers 
».  Z.  «&M.  T.  Co.,  11  Ohio,  273;  8.  c.  13  Ohio,  197.  And  where  the  com- 
pany retains  its  organization  and  officers,  it  may  be  compelled,  by  writ  of  man- 
damus, to  enforce  calls  against  the  shareholders,  to  the  extent  of  their  liability, 
as  well  as  to  perform  other  duties.  Commonwealth  v.  Mayor  of  Lancaster,  5 
Watts,  152. 

•  170 


§51. 


CONDITIONS   PRECEDENT  TO   MAKING   CALLS. 


171 


the  subscribers  to  such  joint-stock  companies,  under  the  statute, 
being  held  liable  to  the  same  extent  as  partners.* 

12.  The  company  may  assign,  as  security  for  a  debt  due  from 
them,  an  existing  unpaid  call  upon  shares  not  yet  due,  and  if  the 
assignment  contains  a  power  of  sale,  that  will  not  invalidate  the 
assignment,  since  if  held  void,  a  court  of  equity  will  expunge  it, 
or  restrain  its  exercise,  and  it  cannot  have  any  effect  to  avoid  the 
assignment  until  acted  upon  ;  and  a  shareholder  from  whom  such 
call  is  due  will  be  affected  with  notice  of  the  assignment,  if  pre- 
siding at  the  meeting  when  it  was  made,  although  having  no 
further  knowledge  in  regard  to  it.*  But  it  was  doubted  if  any 
notice  were  required  to  perfect  an  assignment  in  security  of  a 
bona  fide  debt,  against  a  subsequent  judgment  or  attachment  lien. 
And  in  a  later  case,^^  it  was  decided  that  no  notice  is  required  in 
such  case,  and  that  Watts  v.  Porter,"  where  the  majority  of 
Queen's  Bench  held  such  notice  indispensable,  was  no  longer  law. 


•SECTION   V. 


Conditions  precedent  to  maJeiiig  Calls. 


1.  Conditions  precedent  must  be  performed 

be/ore  calls. 

2.  But  collateral,  or  subsequent  conditions  not. 
8.  D^nite  capital  must  all  be  subscribed  be- 
fore calls. 

4.  It  is  the  same  where  d^ned  by  the  com- 

pany, as  in  the  charter. 

5.  Conditional  subscriptions  not  to  be  reck- 

oned. 


6.  Legislature  cannot  repeal  conditions  prece- 

dent. 

7.  Limit  of  assessments  cannot  be  exceeded 

for  any  purpose. 

8.  Where  charter  fails  to  limit  stock,  corpo- 

ration may. 

9.  Alteration  in  charter  reducing  amount  of 

stock. 


§  51.  1.  Conditions  precedent*  must  be  complied  with,  before 
any  binding  calls  can  be  made.  Any  thing,  which,  by  the  express 
provisions  of  the  charter,  or  the  general  laws  of  the  state,  is  made 
a  condition  to  be  performed  on  the  part  of  the  company,  or  its 

*  Matter  of  the  Sea,  Fire,  and  Life  Assurance  Society,  8  De  G.  M.  &  G.  459 ; 
8.  c.  23  Eng.  L.  &  Eq.  422.  The  form  of  proceeding  and  the  extent  of  re- 
sponsibility is  extensively  considered,  as  to  delinquent  subscribers  to  an  insolvent 
corporation,  in  Adler  v.  Milw.  Patent  Brick  Co.,  13  Wise.  67. 

•  Pickering  r.  Ilfracombe  Railw.  Law  Rep.,  8  C.  P.  285. 
•«  Robinson  r.  Nisbitt,  id.  264. 

"  3  El.  &  B.  743. 

•  171 


172  ASSESSMENTS   OR   CALLS.  CH.  IX. 

agents,  before  and  as  tlie  foundation  of  the  right  to  make  calls, 
upon  the  subscriptions  to  the  stock ;  or  where  the  thing  is  re- 
quired to  be  done,  before  calls  shall  be  made,  and  is  ah  important 
element  in  the  consideration  of  the  agreement  to  take  stock  in 
the  company,  it  should  ordinarily  be  regarded  as  a  condition 
precedent. 

2.  But  where  the  matter  to  be  done  is  rather  incidental  to  the 
main  design,  and  only  affects  the  enterprise  collaterally,  it  will 
commonly  be  regarded  as  merely  directory  to  the  company,  or  at 
most  as  a  concurrent  or  subsequent  condition,  to  be  enforced  by 
independent  proceedings,  and  in  the  performance  of  which  time 
is  not  indispensable.^ 

'  Carlisle  v.  Cahawba  &  Marion  Railway  Co.,  4  Ala.  70;  Ante,  §  18;  Banet 
».  Alton  &  Sangamon  Railway  Co.,  13  HI.  504 ;  Utica  &  Schenectady  Railway 
Co.  V.  BrinkerhofF,  21  Wend.  139.  This  last  case  is  an  action  upon  a  special 
undertaking  to  pay  land  damages,  on  condition  the  company  would  locate  their 
road  so  as  to  terminate  at  a  particular  place,  which  the  company  alleged  they 
had  done,  and  defendant  was  held  not  liable,  for  want  of  mutuality,  the  com- 
pany not  being  bound  by  the  contract.  Cooke  v.  Oxley,  3  T.  R.  653.  But  it 
admits  of  some  question,  we  think,  whether  the  case  of  21  Wend.  139,  comes 
fairly  within  the  principle  upon  which  it  was  decided.  The  case  of  Cooke  v. 
Oxley,  which  has  been  sometimes  questioned,  is  an  obvious  case  of  want  of  con- 
sideration on  the  part  of  defendant,  it  being  a  mere  naked  refusal  of  goods,  for 
a  fixed  time,  the  plaintiif  in  the  mean  time  having  an  election,  to  take  them 
or  not.  This  class  of  cases  is  numerous  and  sound,  resting  upon  the  mere  want 
of  consideration.  Burnet  v.  M.  Bisco,  4  Johns.  235.  But  where  such  an  option 
is  given  upon  consideration,  or  as  a  standing  offer,  and  in  the  mean  time  the 
other  party  proceeds  to  perform  the  contract  on  his  part,  it  is  as  binding  in  this 
form  as  in  any  other.  And  it  was  so  held,  in  the  case  of  the  Cumberland  VaUey 
Railway  Co.  v.  Baab,  9  Watts,  458.  In  this  case  the  inhabitants  of  one  portion 
of  Harrisburg  made  a  subscription  to  induce  the  company  to  cross  the  river  at  a 
particular  point,  and  to  build  their  depot  upon  a  particular  street,  which  being 
done,  the  subscribers  were  held  liable  to  pay  their  subscriptions  to  the  company, 
and,  as  we  think,  upon  the  most  obvious  and  satisfactory  grounds. 

In  Henderson  &  Nashville  Railway  Co.  v.  Leavell,  16  B.  Monr,  358,  it  was 
held,  that  a  subscription  to  the  stock  of  a  railway,  conditioned  that  the  road 
should  pass  through  a  certain  town,  and  the  money  subscribed  should  be  ex- 
pended in  a  certain  county,  was  a  valid  subscription.  The  Court,  Stimpson,  J., 
say :  "  The  stock  in  this  case  is  not  conditional,  although  the  defendant  has,  in 
the  act  of  subscribing  for  it,  brought  the  company  under  certain  obligations  to 
him,  in  relation  to  it,  with  which  they  are  bound  to  comply.  Such  stipulations 
are  not  incompatible  with  sound  policy,  or  with  any  of  the  provisions  of  the 
charter.  They  do  not  render  the  subscription  void,  but  operate,  as  it  was 
intended  they  should,  for  the  benefit  of  the  stockholder.  But  even  if  the  sub- 
scription had  been  made,  upon  the  express  condition  that'the  money  should  not 


§  51.  CONDITIONS   PRECEDENT  TO  MAKING   CALLS.  173 

*  And  where  the  company  voted  to  issue  six  hundred  additional 
shares  and  to  allow  each  stockholder  to  take  one  new  share  for 

be  paid  until  certaio  acts  wore  done  by  the  company,  when  these  acta  were 
done,  the  stock  would  then  be  unconditional,  and  the  subscribers  would  then  be 
compelled  to  pay  it,  as  was  held  in  McMillan  v.  Maysville  &  Lexington  Railway 
Co.,  15  B.  Monr.  218."  If  a  subscription  for  stock  be  conditioned,  that  the 
subscriber  may  withdraw  his  subscription,  at  his  election,  if  the  whole  stock  is 
not  taken,  at  a  given  time,  and  the  defendant  pay  part  of  his  subscription  afler 
that  date,  he  is  liable  for  the  balance,  unless  he  show  the  failure  of  the  condi- 
tion, and  his  own  election,  in  a  reasonable  time  after,  to  withdraw.  Wilming- 
ton &  Raleigh  Railway  Co.  r.  Robeson,  6  Iredell,  391.  On  a  subscription  to 
stock  in  a  railway  upon  condition  the  road  should  "pass"  on  a  certain  route 
through  a  certain  county,  it  is  not  a  condition  precedent  to  the  right  to  demand 
pa}'ment,  that  the  road  should  be  actually  constructed  upon  that  line ;  it  is  suffi- 
cient if  the  road  be  permanently  located  there.  North  Missouri  R.  Co.  t>. 
Winkler,  29  Mo.  318 :  A.  &  N.  L.  Railw.  Co.  ».  Smith,  15  Ohio,  N.  S.  328.  See 
also  Vicksburg,  Shreveport,  and  Texas  Railw.  v.  McKean,  12  La.  Ann.  638. 
There  is  a  recent  case  in  Vermont,  Conn.  &  Pass.  Railw.  Co.  v.  Baxter,  32 
Vt.  805,  where  the  court  seem  to  hold,  that,  where  the  subscription  deBned 
the  route  of  the  proposed  railway,  the  representations  of  the  agent  who  car- 
ried about  the  paper,  that  the  written  words  really  defined  one  particular 
route,  and  not  another,  the  subscribers  themselves  being  equally  conusant  of 
the  facts  with  the  agent,  was  binding  upon  the  company,  and  would  preclude 
them  from  recovering  calls  upon  such  subscription,  provided  the  road  were  not 
in  fact  located  upon  the  particular  route  indicated  by  the  agent,  although  in  fact 
so  located  as  to  comply  with  the  conditions  of  the  written  subscription,  and 
although  the  agent  in  expressing  the  opinion  he  did,  acted  in  perfect  good  faith. 
The  case  is  not  one  of  sufficient  importance  to  require  much  discussion,  but  it 
may  be  well  to  bear  in  mind,  what  seems  to  have  escaped  the  apprehension  of 
the  court  for  the  moment,  that  the  point  ruled  as  stated  in  the  marginal  note 
and  in  the  opinion  of  the  court,  seems  to  be  adopting  the  oral  representations  of 
the  agent,  made  at  the  time  of  the  subscription,  as  part  of  the  Avritten  contract 
of  subscription.  The  charge  of- the  court  below  puts  the  case  upon  the  ground, 
that  the  subscriber  is  bound  by  the  legal  construction  of  his  written  subscription, 
and  that  he  cannot  escape  such  responsibility  by  showing  that  those  who  acted 
on  behalf  of  the  company  maintained  a  different  opinion,  unless  that  was  done 
fraudulently,  with  a  view  to  deceive  the  defendant.  We  understood  that  to  be 
the  law  at  the  time,  and  we  cannot  fairly  say  that  we  understand  it  differently 
now. 

In  Chamberlain  r.  Paincsville  &  Hudson  R.  Co.,  15  Ohio  N.  S.  225,  it  was 
decided  that  where  a  subscription  was  made  for  a  given  number  of  shares  of 
stock  in  a  railway  company,  payable  at  such  times,  and  in  such  instalments,  as 
the  directors  may  prescribe,  provided  the  road  is  "  permanently  located"  on  a 
given  route,  and  that  a  "  freight  house  and  depot  be  built "  at  a  point  named  :  — 
1.  That  on  the  permanent  location  of  the  road  in  accordance  with  the  terms 
proposed,  the  subscription  became  absolute.  2.  That  the  provision  in  relation 
to  the  erection  of  the  buildings  must  be  regarded  as  a  stipulation  merely,  and 

♦  172 


174  ASSESSMENTS   OR   CALLS.  CH.  IX. 

*  every  two  held  by  him,  if  he  subscribed  for  the  same,  paid  a  cer- 
tain sum  and  gave  his  note  for  the  balance,  before  a  day  named ; 

its  performance  could  not  be  reasonably  considered  a  condition  precedent  to  the 
right  to  collect  the  amount  of  the  subscription,  3.  The  giving  by  a  subscriber, 
of  his  note  for  the  balance  of  his  subscription,  and  taking,  therefor,  from  the 
company,  a  receipt,  stipulating,  that  when  paid,  the  amount  of  the  note  should 
be  applied  on  his  stock,  was  prima  facie  a  waiver  of  conditions  precedent.  But 
this  is  denied  in  a  recent  case,  Parker  v.  Thomas,  19  Ind.  213. 

And  in  McAllister  v.  The  Ind.  &  Cin.  Railw.  Co.,  15  Ind.  11,  a  question 
similar  to  the  one  stated  in  Conn.  &  Pass,  Railw.  Co.  v.  Baxter,  supra,  arose 
and  received  a  far  more  just  and  reasonable  determination.  The  plaintiff  made 
an  unconditional  subscription  to  the  stock  of  the  plaintiff's  company,  and  paid 
the  amount  and  took  and  retained  his  certificate  without  offering  to  surrender 
the  same.  But  at  the  time  of  the  subscription  the  company  promised  that  a 
branch  of  their  line  should  come  to  Milford,  the  place  of  the  plaintiff's  resi- 
dence, which  had  not  been  done.  The  suit  was  brought  to  recover  the  money 
paid.  Held,  that  the  parol  promise  to  construct  the  branch  to  Milford,  could 
not  be  proven  as  part  of  the  written  contract  of  subscription ;  and  hence  the 
money  paid  could  not  be  recovered  on  the  ground  of  a  breach  of  contract. 
2.  A  recovery  could  not  be  had  on  the  ground  of  fraud :  the  parol  promise  and 
representation  being,  under  the  circumstances,  no  more  than  the  expression  of 
an  existing  intention  to  make  the  branch.  3.  Under  the  circumstances  the 
company  was  not  liable  to  repay  the  money. 

See  also  Andrews  v.  Ohio  &  !Miss.  Railw.  Co.,  14  Ind.  169 ;  Eakright  v.  L. 
&  N.  Ind.  Railw.,  13  Ind.  404,  where  the  question  of  controlling  written 
subscriptions  by  oral  declarations  of  those  who  solicit  them,  as  to  the  probable 
route  of  the  road,  is  further  discussed  and  placed  upon  the  true  ground,  that 
such  representations  can  have  no  effect,  unless  upon  the  ground  of  fraud.  See 
also  Parker  v.  Thomas,  19  Ind.  213;  Cunningham  v.  E.  &  K.  Railw.  Co., 
2  Head,  23 ;  Brownlee  v.  O.,  Ind.  &  111.  RaUw.  18  Ind.  68. 

There  are  some  cases  which  go  the  length  of  saying  that  as  the  directors  of  a 
railway  company  have  no  power  to  give  any  binding  assurance  as  to  the  route 
which  shall  be  finally  adopted,  it  being  their  duty  to  place  it  where,  in  their 
ultimate  judgment,  the  public  good  requires,  it  is  the  folly  of  any  subscriber  to 
rely  upon  any  such  representation,  and  that  even  where  it  could  be  shown  that 
such  representations  were  fraudulently  made,  to  induce  subscriptions,  and  had 
the  purposed  effect,  the  subscriptions  could  not  be  avoided  on  that  ground. 
Ellison  V.  Mobile  &  Ohio  Railw.,  36  Miss.  572;  Walker  v.  Same,  34  id.  245. 

See  also  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491.  The  verbal  promise 
of  the  agent  who  takes  up  subscriptions  for  a  railway,  that  the  time  of  payment 
shall  be  delayed  beyond  the  time  named  in  the  charter,  and  which  induces  the 
subscriptions,  is  not  binding  upon  the  company.  Thigpen  v.  Miss.  Central 
Railw.,  32  Miss.  347. 

One  subscribed,  in  1853,  for  twenty  shares  of  the  stock  of  the  P.  &  C.  R.  R. 

Co.,  on  the  express  condition  that  the  company  "  should  locate  and  construct 

their  railway  along  the  route  contemplated  by  the  Meyer's  Mill  Plank  Road  Co., 

for  their  road,"  paid  one  instalment,  part  of  the  second,  but  delayed  the  payment 

•  173 


§  51.  CONDITIONS  PRECEDENT  TO   MAKING   CALLS.  175 

*it  was  held  there  was  no  implied  condition  that  the  whole  six 
hundred  shares  should  be  issued,  and  the  failure  to  do  so  was  *no 

of  the  residue,  as  the  calls  were  made,  until  the  company,  before  the  road  was 
constructed  along  the  route  mentioned,  suspended  operations,  after  which  pay- 
ment was  refused  on  the  ground  that,  though  the  road  had  been  located  by  the 
company,  they  had  not  constructed  it,  according  to  the  condition  in  the  subscrip- 
tion. In  an  action  brought  by  the  company,  it  was  Held,  1.  That  the  promise 
of  subscription  being  precedent  to  that  of  construction,  upon  the  part  of  the 
company,  the  defendant  could  not  insist  upon  perfonnance  by  tlie  railroad  com- 
pany, while  he  refused  performance  on  his  part,  and  that  the  road  having  been 
located  as  stipulated,  and  completed  so  far  as  the  means  of  the  company  would 
allow,  it  was  a  compliance  with  the  condition,  and  the  company  were  entitled  to 
recover.  2.  That  the  condition  in  the  contract  of  subscription  was  not  a  condi- 
tion precedent,  and  did  not  require  the  completion  of  the  road  before  payment 
could  be  required,  but  only  that  when  located  and  constructed  it  should  occupy 
the  route  designated,  the  undertaking  being  on  the  part  of  the  subscriber,  to 
pay,  as  calls  should  be  made  by  the  directors,  and  on  the  part  of  the  company 
to  locate  as  stipulated,  and  construct  as  fast  as  their  means  would  allow. 
8.  That  the  suspension  of  operations  made  by  the  directors  long  after  the  pay- 
ments upon  defendant's  stock  had  been  due,  was  not  a  defence  in  an  action 
brought  against  him  for  the  unpaid  balance  thereon.  Miller  v.  Pittsburg  & 
Connellsville  Railw.  40  Penn.  St.  237.  • 

It  was  held  in  one  case  that  where  the  charter  required  subscriptions  by 
responsible  persons  of  a  certain  proportion  of  the  estimated  cost  of  the  work 
before  entering  upon  the  construction,  it  was  not  necessary  for  the  company 
to  show  compliance  with  this  requirement  in  order  to  enforce  calls.  Nor  does  the 
right  to  make  calls  depend  upon  the  extent  or  nature  of  the  indebtedness  of  the 
company ;  nor  can  a  subscriber  defend  against  calls  by  showing  that  a  portion 
of  the  requisite  amount  of  subscriptions  to  bind  the  defendant  were  made  by 
persons  of  no  actual  or  reputed  pecuniary  responsibility,  unless  he  also  show 
that  they  were  not  made  or  taken  in  good  faith.  Penobscot  Railw.  v.  'N\niite, 
41  Me.  512.  And  the  bad  faith  cannot  be  shown  by  the  declarations  of  the 
subscribers,  made  long  after  making  such  subscriptions.  lb.  And  where  the 
charter  of  a  corporation  recjuires  that  one  thousand  shares  shall  be  subscribed 
before  the  organization  of  the  company,  the  decision  of  the  majority  of  the  sub- 
scribers that  this  condition  has  been  complied  with,  and  the  actual  organization 
of  the  company  in  pursuance  of  the  decision,  are  binding  upon  the  minority.  lb. 
This  will  not  preclude  the  minority  from  defending  on  the  ground  that  the  pro- 
ceedings of  the  majority  were  in  bad  faith.  See  also  Taggart  v.  West  Marj-land 
Railw.,  24  Md.  663.  And  where  the  subscriber  gives  the  company  his  note  for 
the  sum  required  to  be  paid  at  the  time  of  subscription,  and  subsequently  pays  the 
same,  his  subscription  is  binding,  aiid  makes  him  a  member  of  the  company,  and 
he  cannot  escape  the  responsibility  of  his  position  on  account  of  any  previous 
irregularity.  Ogdensburgh  Railw.  r.  WoUey,  38  N.  Y.  118.  Subscribers  can- 
not defend  against  calls,  on  the  ground  that  subscriptions  were  taken  for  two 
sections  of  the  road  without  distinguishing  how  much  waa  to  be  applied  on  each ; 
or  on  the  ground  that  the  construction  of  the  road  was  bcgim  before  twenty  per 

♦  174,  176 


176  ASSESSMENTS   OR   CALLS.  '        CH.  IX. 

ground  for  allowing  an  action  to  be  maintained  for  the  money 
paid,  or  any  defence  to  the  notes  given  for  the  balance.^ 

3.  It  is  an  essential  condition  to  making  calls,  in  those  com- 
panies where  the  number  of  shares  and  the  amount  of  capital  is 
fixed,  that  the  whole  stock  shall  be  subscribed  before  any  calls 
can  lawfully  be  made.^  And  if  calls  are  made  before  the  requisite 
stock  is  subscribed,  although  the  subscription  is  completed  *  before 
action  brought,  no  recovery  can  be  had."*  But  it  has  been  held, 
that  the  general  provision  in  the  charter  of  a  railway  act,  that  so 
soon  as  1,500,000Z.  shall  have  been  subscribed,  it  shall  be  lawful 
for  the  company  to  put  in  force  all  the  powers  of  the  act,  author- 
izing the  construction  of  the  railway,  and  of  the  acts  therein 
recited,  being  the  general  railway  acts,  did  not  require  such  sub- 
scription to  be  made  before  making  calls,  but  only  before  exercis- 
ing compulsory  powers  of  taking  land.^ 

centum  of  each  subscription  was  paid,  according  to  the  requirements  of  the 
charter ;  or  that  by  a  subsequent  statute  the  amount  of  capital  stock  required  to 
build  the  road  had  been  reduced  below  the  requirements  of  the  charter ;  or  that 
interest  had  been  paid  on  subscriptions  according  to  the  recommendation  of  the 
terms  of  subscription ;  or  that  the  charter  of  the  company  had  been  amended 
by  extending  the  time  for  completing  the  road.  Agricultural  Branch  Railw.  v. 
Winchester,  13  Allen,  29. 

*  Nutter  V.  Lexington  &  West  Cambridge  Railw.,  6  Gray,  85. 

^  Stoneham  Branch  Railway  Go.  v.  Gould,  2  Gray,  277 ;  Salem  Mill-Dam 
Co.  V.  Ropes,  6  Pick.  23  ;  s.  c.  9  Pick.  187 ;  Cabot  &  West  Springfield  Bridge 
Co.  V.  Chapin,  6  Cush.  50  ;  Worcester  &  Nashua  Railway  Co.  v.  ffinds,  8  Cush. 
110 :  Lexington  &  West  Cambridge  RaUway  Co.  v.  Chandler,  13  Met.  311 ;  N. 
Hampshire  Central  Railway  Co.  v,  Johnson,  10  Foster,  390. 

But  a  subscriber  for  shares  in  a  railway  company  is  liable  for  calls,  although 
by  a  subsequent  amendment  of  the  charter  of  the  company  the  capital  stock  is 
limited  to  four  thousand  shares,  and  that  number  has  not  been  subscribed,  there 
being  no  such  condition,  either  in  the  charter  of  the  company,  or  the  terms  of 
subscription,  at  the  time  of  subscribing.  York  &  Cumberland  Railway  v.  Pratt, 
40  Maine,  447.  But  the  number  of  shares  required  by  the  charter  must  be 
subscribed,  as  stated  in  the  text.  Penobscot  Railway  r.  Dummer,  40  Maine, 
172.  But  the  records  of  the  company  are  evidence  of  such  fact.  lb.  Same  ». 
White,  20  Law  Rep.  689;  s.  c.  41  Maine,  512;  Peake  v.  Wabash  Railw.,  18 
Illinois,  88. 

*  Norwich  &  Lowestoft  Navigation  Co.  'v.  Theobold,  1  Moody  &  M.  161 ; 
Stratford  &  M.  Railway  Co.  r.  Stratton,  2  B.  &  Ad.  518.  And  see  Atlantic 
Cotton  Mills  V.  Abbott,  9  Cush.  423,  where  a  condition  in  a  subscription  for 
stock,  that  the  capital  stock  of  the  company  should  not  be  less  than  $1,500,000, 
was  held  a  condition  precedent  to  making  calls. 

"  Waterford,  Wexford,  &  W.  Railway  Co.  v.  Dalbiac,'  6  Railw.  C.  753 ;  s.  c. 
*  176 


§  51.  CONDmONS   PRECEDENT  TO   MAKING   CALLS.  177 

4.  And  where  the  charter  provides  that  the  members  might 
divide  the  capital  stock  into  as  many  shares  as  they  might  think 
proper,  and  by  a  written  agreement  the  subscribers  fixed  the  cap- 
ital stock  at  $50,000,  divided  into  500  shares  of  §100  each,  and 
only  one  hundred  and  thirty-eight  shares  had  been  subscribed,  it 
was  held  no  assessment  for  the  general  purposes  of  the  corporar 
tion  could  be  made.* 

5.  And  where  the  charter  of  a  railway  company  requires  their 
stock  to  consist  of  not  less  than  a  given  number  of  shares,  assess- 
ments cannot  be  made  before  the  required  number  is  taken.  And 
in  such  case  conditional  subscriptions  are  not  to  be  reckoned,  even 
where  the  condition  is  acceded  to  by  the  company,  if  the  sub- 
scriber still  repudiates  the  subscription,  on  the  ground  that  the 
condition  is  not  fully  performed  by  the  contract  drawn  up  in  form. 
And  the  plea  of  the  general  issue,  is  no  such  *  admission  of  the 
existence  of  the  company,  as  to  preclude  subscribers  from  con- 
testing the  amount  of  subscriptions,  to  enable  the  company  to 
make  calls.' 

4  Eng.  L.  &  Eq.  455.  But  the  American  cases  will  not  justify  such  a  construc- 
tion. It  would  here  be  held  a  condition  precedent  to  the  right  to  make  calls,  or 
even  to  maintain  a  corporate  existence,  probably. 

•  Littleton  Manufacturing  Co.  v.  Parker,  14  N.  Hamp.  543 ;  Contoocook 
Valley  Railway  Co.  v.  Barker,  32  N.  Hamp.  363. 

Where  the  condition  of  a  bond  given  for  the  amount  of  a  railway  subscription 
was,  that  the  same  should  be  paid  when  the  road  was  "  completed"  to  a  certain 
village,  it  was  held  that  the  condition  was  performed  when  the  road  was  made 
to  the  suburbs  of  the  village,  in  such  a  manner,  as  to  allow  daily  trains  oi)  it, 
canying  all  the  freight  and  passengers  that  offer,  although  some  portion  of  the 
work  was  only  temporarj-.  O'Neal  v.  King,  3  Jones,  517 ;  Chapman  r.  Mad 
River  &  Lake  Erie  Railway  Co.,  6  Ohio  N.  S.  119. 

^  Oldtown  &  Lincoln  Railw.  Co.  v.  Veazie,  39  Maine,  571.  Any  condition 
the  subscriber  sees  fit  to  annex  to  his  subscription  must  be  complied  with  before 
the  subscriber  is  liable  to  assessments.  Penobscot  &  Kennebec  Railw.  Co. 
r.  Dunn,  39  Maine,  587. 

A  condition,  that  not  more  than  five  dollars  on  a  share  shall  be  assessed  at 
one  time,  is  not  violated  by  two  or  more  assessments  being  made  at  one  time,  if 
only  five  dollars  is  required  to  be  paid  at  one  time.  lb.  Penobscot  Railw. 
V.  Dummcr,  40  Maine,  172.  And  the  same  principle  already  stated,  that  where 
the  conditions  of  a  subscription  required  seventy-five  per  cent  of  the  estimated 
cost  of  any  section  of  the  road  to  be  subscribed,  by  responsible  persons,  before 
its  construction  should  be  commenced,  if  the  subscriptions  were  obtained  in 
good  faith,  assessments  will  be  valid,  although  some  of  the  subscriptions  to  make 
up  the  amount,  prove  worthless,  is  here  abo  maintained.     lb. 

And  where  the  charter  of  the  company  requires  that  the  capital  stock  be  not 

12  •  177 


178  ASSESSMENTS   OB   CALLS.  CH.  IX. 

6.  And  where  the  charter  originally  required  11,000  shares  to 
be  the  minimum,  and  when  less  than  10,000  were  subscribed,  the 
company  was  organized,  and  the  subscriptions  accepted,  and 
assessments  made,  and  afterwards,  by  an  act  of  the  legislature, 
accepted  by  the  corporation,  the  minimum  was  reduced  to  8',000 
shares,  in  an  action  to  recover  assessments,  made  on  defendant's 
shares,  before  and  after  such  alteration  of  the  charter,  it  was  held : 

1.  That  the  minimum  was  a  condition  precedent,  to  be  fulfilled 
by  the  corporation,  before  the  subscribers  were  liable  to  assess- 
ments. 

2.  That  the  alteration  of  the  charter  will  not  aflfect  prior  sub- 
scribers. 

3.  Nor  will  the  defendant  be  estopped  from  relying  upon  this 
*  condition,  by  having  acted  as  a  shareholder  and  officer  in  the  cor- 
poration, and  contributed  towards  the  expenses  of  the  company. 

4.  That  corporators,  by  any  acts  or  declarations,  cannot  relieve 
the  corporation  from  its  obligation,  to  possess  the  capital  stock, 
required  by  its  charter.^ 

7.  Where  the  charter  of  a  railway  company  provided  for  assess- 
ments by  the  directors  of  the  company  upon  the  shares  of  the 
stock,  as  they  might  deem  expedient  and  necessary  in  the  execu- 
tion and  progress  of  the  work,  provided  "  that  no  assessment  shall 
be  laid  upon  any  share  in  said  corporation  of  a  greater  amount 
than  one  hundred  dollars  in  the  whole,  .  .  .  and  if  a  greater 
amount  of  money  shall  be  necessary  to  complete  said  road  it  shall 
be  raised  by  creating  new  shares,"  it  was  held  that  the  charter 
limited  the  amount  of  all  the  assessments  to  one  hundred  dollars 
on  a  share,  and  that  assessments  beyond  that  sum,  made  for  the 
purpose  of  paying  the  debts  of  the  company,  were  illegal.^ 

less  than  five  hundred,  nor  more  than  ten  thousand  shares,  of  $100  each,  and 
authorizes  the  directors  to  assess  upon  five  hundred  shares,  as  soon  as  subscribed 
and  from  time  to  time  to  enlarge  the  capital  to  the  maximum  amount-  named  in 
the  charter,  all  the  shares  to  be  equally  assessed,  it  is  not  necessary  for  the  com- 
pany to  define  their  capital,  v?ithin  the  prescribed  limits,  before  making  calls. 
White  Mountains  Railw.  c.  Eastman,  34  N.  H.  124. 

It  is  doubtful  if  the  directors  of  a  railway  have  power  to  release  subscribers 
to  stock,  but  at  all  events,  where  the  release  is  optional  with  the  subscriber,  he 
must  make  his  election  to  be  released,  and  in  a  reasonable  time.  Penobscot  & 
Ken.  RaUw.  v.  Dunn,  39  Maine,  587.  See  also  Troy  &  Greenfield  Railw.  v. 
Newton,  8  Gray,  596. 

*  Great  Falls  &  Conway  R.  Co.  v.  Copp,  38  N.  H.  124. 
•178 


§  52.  CALLS  MAY  BE  MADE   PAYABLE   BY  INSTALMENTS.  179 

8.  Where  the  charter  of  a  railway  company  fails  to  fix  the  num- 
ber of  shares  of  the  capital  stock,  it  must  be  presumed  to  have 
been  the  purpose  of  the  legislature  that  the  corporation  should 
limit  the  number.  And  this  must  be  done  before  any  valid  as- 
sessments can  be  made.  In  such  case,  if  the  number  fixed  exceed 
the  number  subscribed,  the  company  may  change  the  number ; 
but  the  assessments  must  be  made  upon  the  whole  number,  and 
if  an  assessment  be  made  before  the  number  ultimately  fixed  is 
subscribed,  it  will  be  irregular  and  void.  A  subscriber  who  has 
paid  one  assessment  is  not  thereby  precluded  from  insisting  upon 
this  irregularity  in  defence  to  others.® 

9.  Where  the  charter  of  a  railway  company  as  originally  grant- 
ed limited  the  amount  of  stock  at  a  point  which  the  subscription 
never  reached,  but  by  a  subsequent  alteration  of  the  charter  the 
amount  of  the  capital  stock  was  reduced,  and  after  the  subscrip- 
tions reached  that  amount  the  company  was  duly  organized,  it  was 
held  that  the  alteration  in  the  charter  did  not  release  prior  sub- 
scribers.^® 


*SECTION  VI. 
Calls  may  he  made  payable  by  Instalments. 

§  52.  It  was  at  one  time  considered  that  calls  made  payable  by 
instalments  were  invalid.*  But  it  seems  now  to  be  settled  tliat 
such  mode  of  making  calls,  where  the  directors  of  the  company 
have  an  unlimited' discretion,  as  to  the  time  and  mode  of  requiring 
payments  of  the  subscriptions,  is  unobjectionable.* 

But  where  the  subscription  contains  a  provision,  that  payment 
shall  be  made,  at  such  times  and  places  as  should  thereafter  be 
directed  by  the  directors,  and  shall  be  applied  to  the  construction 
of  the  road,  it  was  held,  that  the  subscription  did  not  become  pay- 
able, until  the  directors,  at  a  regular  meeting,  had  fixed  the  time 

•  Som.  &  Ken.  R.  Co.  v.  Gushing,  45  Me.  524. 

"  Bedford  Railw.  Co.  r.  Bowser,  48  Penn.  St.  29. 

'  Ambergate,  N.  &  Boston  &  E.  J.  R.  v.  Coulthard,  5  ExcL  469;  Strat- 
ford &  M.  R.  r.  Stratton,  2  B.  &  Ad.  618. 

»  London  &  N.  W.  R.  r.  M'Michael,  6  Exch.  273 ;  Ambergate  R.  v.  Nor- 
cliffe,  6  Exch.  629 ;  s.  c.  4  Eng.  L.  &  Eq.  461 ;  Birkenhead,  L.  &  Ch.  R.  v. 
Webster,  6  Exch.  277 ;  8.  c.  6  Railw.  C.  498. 

•  179 


180 


ASSESSMENTS   OR   CALLS. 


CH.  IX. 


and  place  of  payment.^  But  it  is  further  held,  in  this  case,  that  it 
is  not  necessary  to  give  notice  to  the  subscribers  of  the  time  and 
place  of  payment.^  This  point  in  the  decision  seems  not  altogether 
in  accordance  with  the  usual  practice  in  such  cases,  or  the  general 
course  of  decision  in  regard  to  calls,  which  upon  general  principles 
must  be  notified  to  subscribers  before  an  action  can  be  maintained. 
But  where  the  subscription  is  made  payable  in  instalments  of  ten 
per  cent  every  sixty  days  as  the  work  progresses,  it  is  not  impor- 
tant that  any  formal  call  or  demand  be  made.* 

Where  the  charter  gives  the  corporation  power  to  collect  sub- 
scriptions to  the  capital  stock  by  such  instalments  as  the  president 
and  directors  shall  deem  proper,  they  may  make  contracts  with 
subscribers  for  the  payment  of  subscriptions  in  any  reasonable  in- 
stalments, as  to  time  and  place,  and  if  such  condition  were  ultra 
irireSf  it  would  render  the  whole  contract  void,  and  not  the  condi- 
tion merely.^ 


•SECTION  VII, 


Parti/  liable  for  Calls. 


1.  Subscribers  liable  to  calls. 

2.  6.    What  constitutes  subscription  to  a  capi- 

tal stock. 

3.  How  a  purchaser  of  stock  becomes  liable  to 

the  company. 

4.  One  may  so  conduct  as  to  estop  him  from 

denying  his  liability. 
6.    The  register  of  the  company  evidence  of 
membership. 

6.  Subscriptions  must  be  made  in  conformity 

to  charter. 

7.  Transferee  liable  for  calls.      Subscriber 

also  in  some  cases. 


8.  Original  books  of  subscription  primary 

evidence. 

9.  If  lost  secondary  evidence  admissible. 

10.  What  acts  will  constitute  one  a  share- 

holder. 

11.  May  take  and  negotiate  or  enforce  notes 

for  subsaiptions. 

12.  But  note  fraudulently  drained  not  en- 

forceable. 

13.  Subscriptions  as  executor  distinct  con- 

tracts from  those  in  private  capacity. 


§  53.  1.  All  the  original  subscribers  to  the  stock  in  a  railway 
company  are  usually  made  liable  to  calls,  by  the  charter  of  the 
company,  or  by  general  statute. 

2.  Some  question  has  arisen  in  the  English  courts,  as  to  what 
is  necessary  to  constitute  one  a  subscriber.     In   an   early  case^ 


61. 


3  Ross  V.  Lafayette  &  Ind.  Railw.,  6  Porter  (Ind.),  297. 

*  Breedlove  v.  M.  &  F.  Railw.,  12  Ind.  114;  Smith  v.  Ind.  &  HI.  Railw.,  id. 

*  Roberts  v.  Ohio  &  Mobile  Railw.,  32  Mississippi,  378. 
'  Thames  Tunnel  Company  v.  Sheldon,  6  B.  &  C.  341.' 

*  180 


§  53.  PARTY  LIABLE   FOR   CALLS.  181 

upon  this  subject,  it  was  held,  that  the  word  "  subscriber,"  in  the 
act  of  parliament  constituting  the  company,  applied  only  to  those 
who  had  stipulated  that  they  would  make  payment,  and  not  to  all 
those  who  had  advanced  money ;  and  that  one,  who  was  named  in 
the  recital  of  the  act,  as  one  of  the  original  proprietors,  and  who 
had  paid  a  deposit  on  eight  shares,  but  who  had  not  signed  any 
contracts,  was  not  a  subscriber  within  the  meaning  of  the  act,  and 
not  liable  to  be  sued  by  the  directors  for  calls  on  the  remainder  of 
such  shares. 

3.  This  is  the  generally  received  opinion  upon  that  subject,  in 
this  country.  In  one  case,*  a  plea  to  an  action  to  recover  calls  on 
stock  subscribed,  that  another  person  had  agreed  to  take  the  stock, 
and  that  the  commissioners  had  counted  this  stock  to  such  other 
person,  is  insufficient.  The  signature  of  the  first  subscriber  should 
have  been  erased,  and  that  of  the  other  substituted,  or  something 
done  to  hold  the  latter  liable.  A  subscriber  for  stock  *  cannot  sub- 
rogate another  person  to  his  obligation,  without  a  substitution  of 
his  name  upon  the  books  of  the  company,  or  some  other  equivalent 
act  recognized  by  the  charter  and  by-laws  of  the  company. 

4.  But  the  principal  difficulty,  in  regard  to  liability  for  calls, 
arises,  where  there  have  been  transfers,  and  the  name  of  the  trans- 
feree not  entered  upon  the  books  of  the  company.  For  whenever 
the  name  of  the  vendee  of  sliares  is  transferred  to  the  register  of 
shareholders,  the  cases  all  agree  that  the  vendor  is  exonerated, 
(unless  there  is  some  express  provision  of  law,  by  which  the  liabil- 
ity of  the  original  subscriber  still  continues,)  and  the  vendee 
becomes  liable  for  future  calls.*  And  the  vendee  having  made 
such  representation  to  the  company,  as  to  induce  them  to  enter  his 
name  upon  the  register  of  shares,  is  estopped  to  deny  the  validity 
of  the  transfer.*  And  even  where  the  party  has  represented  him- 
self to  the  company  as  the  owner  of  shares,  and  sent  in  scrip  cer- 
tificates, which  had  been  purchased  by  him,  claiming  to  be  registered 
as  a  proprietor,  in  respect  thereof,  and  had  received  from  the  com- 
pany receipts  therefor,  with  a  notice  that  they  would  be  exchanged 

•  Ryder  r.  Alton  &  Sangamon  R.,  13  111.  516. 

'  Sheffield  &  Ashton-under-Lyne  &  Man.  R.  v.  Woodcock,  2  Railw.  C.  522 ; 
8.  0.  7  M.  &  W.  574 ;  London  &  Grand  J.  R.  v.  Freeman,  2  Railw.  C.  468 ; 
8.  c.  2  M.  &G.  606 ;  pott,  §  54. 

*  Sheffield,  Ash.  &  M,  R.  p.  Woodcock,  supra;  London  &  Grand  J.  R.  v. 
Freeman,  $upra. 

*  181 


182  ASSESSMENTS   OS   CALLS.  CH.  IX. 

for  sealed  certificates  on  demand,  he  was  held  estopped  to  deny 
his  liability  for  calls,  although  his  name  had  not  been  entered  upon 
the  register  of  shareholders,  or  any  memorial  of  transfer  entered, 
as  required  by  the  act.^  And  where  one  has  paid  calls  on  shares, 
or  attended  meetings  of  the  company,  as  the  proprietor  of  shares, 
he  is  estopped  to  deny  such  membership.^ 

5.  The  holders  of  scrip  certificates  are  properly  entered  as  pro- 
prietors of  shares  before  the  passing  of  the  act,  although  they  have 
neither  signed  the  parliamentary  contract,  nor  been  original  sub- 
scribers ;  and  the  register-book  of  shareholders,  which  is  *  required 
by  the  statute  to  be  kept  in  a  prescribed  form  by  the  company, 
though  irregularly  kept,  is  prima  facie  evidence  who  are  proprie- 
tors.'^ 

6.  The  subscription  for  stock  to  be  valid,  must  be  made  in  con- 
formity with  the  act.  So  that  where  it  was  required  to  be  made 
in  such  form  as  to  bind  the  subscriber  and  his  heirs,  it  was  deemed 
requisite  to  be  made  under  seal,^  But  such  a  provision  is  of  no 
force  in  this  country,  simple  contracts  being  of  the  same  force  as 
against  heirs  as  specialties. 

7.  If  by  the  act  of  incorporation  the  shares  are  made  assignable 
without  restriction,  and  no  express  provision  exists  in  regard  to 
the  party  liable  for  calls,  it  would  seem  to  follow,  upon  the  general 
principles  of  the  law  of  contract,  that  the  proprietor  of  the  share, 
for  the  time  being,  is  liable  for  calls.  And  where  certain  formali- 
ties are  requisite  in  the  transfer  of  shares,  and  these  have  been 
complied  with  on  the  part  of  the  transferee,  or  waived  by  the  com- 
pany at  his  request,  his  liability  to  calls  then  attaches.^  The  liabil- 
ity ef  the  original  subscriber  often  continues,  at  the  election  of  the 

*  Cheltenham  &  Great  Western  Union  R.  v.  Daniel,  2  Q.  B.  281,  and  Same 
V.  Medina,  2  Railw.  C.  728.  And  this  being  matter  of  estoppel  in  pais,  may- 
be used  in  evidence,  in  answer  to  the  defence,  without  being  pleaded. 

8  London  &  Grand  J.  R.  v.  Graham,  2  Railw.  C.  870;  s.  c.  1  Q.  B.  271. 

'  Birmingham,  Boston  &  Th.  J.  R.  v.  Locke,  2  Railw.  C.  867 ;  8.  c.  1  Q.  B. 
256. 

8  Cromford  &  High  Peak  R.  v.  Lacey,  3  Y.  &  Jer.  80.  See  ante,  §  18, 
n.  2. 

»  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  36 ;  Aylesbury  R.  v.  Mount,  5 
Scott,  New  R.  127 ;  West  Philadelphia  Canal  Co.  v.  Innes,  3  Whart.  198 ; 
Mannr.  Currie,  2  Barb.  Sup.  Ct.  294;  Hall  d.  U.  S.  Insurance  Co.,  5  GiU, 
484 ;  Bend  r.  Susquehannah  Bridge  Co.,  6  Har.  &  J.  128;  Angell  &  Ames,  oh. 
16,  §  634. 

♦182 


§  53.  PARTY  LIABLE  FOB  CALLS.  183 

company,  after  that  against  the  vendee  attaches,  but  when  the  com- 
pany consent  to  accept  the  name  of  the  transferee,  that  of  the  sub- 
scriber, or  former  proprietor,  ceases.^^ 

8.  It  seems  to  be  regarded  as  settled  law,  that  the  best  evidence 
of  an  original  subscription  to  the  capital  stock  of  a  railway  com- 
pany is  the  production  of  the  original  subscription  book,  or  the 
book  of  records  of  the  company  on  which  the  subscriptions  were 
made.i^ 

*  9.  But  where  the  books  are  shown  not  to  be  in  the  proper  place 
of  deposit  and  custody,  and  no  trace  can  be  found  of  their  present 
existence  elsewhere,  secondary  evidence  is  admissible.  And  the 
court  decide  the  question  of  loss,  as  a  preliminary  one  to  the  admis- 
sion of  the  secondary  evidence." 

10.  One  who  accepts  a  subscription  made  by  another  on  his  be- 
half, and  pays  the  calls  made  thereon  and  receives  a  certificate  of 
ownership,  is  responsible  as  a  shareholder ;  and  it  makes  no  differ- 
ence that  his  name  d9es  not  appear  upon  the  transfer  books  or  the 
alphabetical  list  of  stockholders  as  a  transferee  of  stock.  And  one 
may  become  a  shareholder  without  receiving  a  certificate  of 
8tock.i2 

11.  It  seems  clear  that  railway  companies  may  accept  promis- 
sory notes  in  payment  of  subscriptions,  and  either  negotiate  or 
enforce  them  by  suit.^^  The  questions  of  pleading  and  evidence 
which  may  be  raised  in  suits  upon  such  notes  are  extensively  dis- 
cussed in  the  case  last  cited. 

12.  And  where  the  subscription  to  railway  stock  is  dependent 
upon  the  condition  that  no  calls  shall  be  made  until  work  should 
be  begun  upon  a  particular  section  of  .the  road,  and  the  subscriber 
was  induced  to  execute  his  note  for  the  amount  upon  the  rep- 
resentation of  the  agents  of  the  company  that  work  had  been 
80  commenced,  when  in  fact  it  bad  not,  the  note  cannot  bo  en- 
forced." 

"  Post,  §  54. 

"  Graff  r.  Pittsburgh  &  Steubenville  Railw.  Co.,  81  Penn.  St.  489.  Theae 
subscriptions  are,  in  fact,  sometimes  made  upon  different  books,  and  then  brought 
together  upon  one  book,  for  the  purpose  of  permanent  preservation.  But  it 
would  seem  there  should  be  evidence  of  the  original  subscription. 

'»  Burr  V.  Wilcox,  6  Bosw.  198. 

"  Goodrich  c.  Reynolds,  31  111.  490.  See  also  Straus  r.  Eagle  Im.  Co.,  6 
Ohio  St.  59. 

"  Taylor  v.  Fletcher,  16  Ind.  80. 

•  183 


184 


ASSESSMENTS   OB  CALLS. 


CH.  IX. 


13.  Subscriptions  in  the  capacity  of  executor  are  to  be  regarded 
as  distinct  contracts  from  those  in  the  personal  capacity  of  the 
subscriber,  so  tliat  the  pendency  of  a  suit  for  one  will  not  abate  or 
render  vexatious  a  subsequent  suit  for  the  other.  ^^ 


SECTION  VIII, 


Release  from  liability  for  Calls. 


1,  2.  Where  the  transfer  of  shares,  without 
registry,  will  relieve  the  proprietor  from 
calls. 

3.  Where  shares  are  forfeited,  by  express  con- 
dition, subscriber  no  longer  liable  for  calls. 


4.  Dues  cannot  be  enforced  which  accrue  upon 
shares  after  they  were  agreed  to  be  can- 
celled. 


§  54.  1.  One  may  relieve  himself  of  his  liability  for  calls,  by 
*  the  transfer  of  his  shares,  and  the  substitution  of  the  name  of  his 
assignee  for  his  own  upon  the  books  of  the  company.  But  until 
this  change  upon  the  books  of  the  company  is  made,  they  are  at 
liberty  to  hold  the  original  subscriber  liable,  if  they  so  elect.^ 
But  where  the  act  of  incorporation  of  a  joint-stock  company  de- 
clared the  shares  should  be  vested  in  subscribers,  their  executors 
and  assigns,  with  power  to  the  subscribers  to  assign  their  shares, 
and  a  committee,  to  be  appointed  under  the  act,  were  authorized 
to  make  calls  upon  the  proprietors  of  shares,  it  was  held,  that  an 
original  subscriber,  who  had  transferred  his  shares,  was  no  longer 
liable  to  calls. '^ 

2.  But  this  case  is  determined  upon  the  express  provisions  of 
the  charter  of  the  company.  The  general  rule,  in  England,  at 
present,  under  their  consolidated  acts,  is  undoubtedly  as  stated 
above.  And  we  see  no  good  reason  why  it  should  not  equally 
apply  in  this  country.  It  would  seem  to  be  the  only  mode  of 
securing  the  ultimate  payment  of  calls.  But  some  of  the  cases 
seem  to  assume,  that  the  mere  transfer  of  the  shares  in  the  mar- 

'»  New  York  City  &  Erie  Railw.  v.  Patrick,  39  N.  Y.  256. 

'  Ante,  §  47,  and  cases  there  cited.  In  Everhart  v.  West  Chester  and  Phila- 
delphia Railw.,  28  Penn.  St.  339,  it  is  said  that  a  transfer  of  stock,  made  for 
the  purpose  of  exonerating  a  subscriber,  without  the  consent  of  the  company, 
is  not  a  valid  defence  to  an  action  against  him  for  the  purchase-money  of  the 
shares  subscribed.     Ante,  §  32. 

*  Huddersfield  Canal  Company  v.  Buckley,  7  T.  R.  36,  42. 
*184 


§  54.  RELEASE   FROU   LIABILITT   FOR  CALLS.  185 

ket  does  exonerate  the  subscriber  from  the  payment  of  future 
calls.  But  this  depends  chiefly  upon  the  provisions  of  special 
charters,  and  the  general  laws  of  the  state,  applicable  to  the 
subject.* 

8.  Where  shares  are  allotted  to  one  upon  the  express  con- 
dition to  be  forfeited  if  a  certain  deposit  is  not  paid  in  a  certain 
time,  and  nothing  more  is  done  by  the  allottee,  he  is  not  liable  *  for 
calls,  although  the  company  have  entered  his  name  upon  the  reg- 
ister of  shares  as  a  shareholder.* 

4.  Where  the  corporation  resolve  to  release  subscribers  and  to 
cancel  their  stock  upon  making  certain  payments,  which  are  made 
and  the  stock  cancelled,  the  company  cannot  enforce  any  dues  on 
such  shares  which  subsequently  accrue,^  since  the  former  arrange- 
ment amounted  to  an  accord  and  satisfaction  of  all  claim  on  the 
pert  of  the  company.  But  if  the  company  thereby  materially 
lessened  the  remedy  of  creditors,  they  might  possibly  interfere. 

'  In  West  Philadelphia  Canal  Co.  v.  Innes,  3  Wharton,  198,  it  was  held,  that 
where  the  proprietor  of  shares  of  the  plaintiff's  stock  transferred  them  upon  the 
books  of  the  companj',  after  calls  were  made,  but  before  they  fell  due,  that  the 
transferee  was  liable  for  such  calls,  although  he  had  never  received  certificates, 
or  given  notice  of  the  acceptance  of  the  transfer.  And  it  was  held  to  make  no 
difference,  that  the  transfer  was  from  an  original  subscriber,  without  considera- 
tion, and  that  the  holder  is  nevertheless  liable  for  unpaid  calls.  Mann  v.  Pentz, 
2  Sandf.  Ch.  258 ;  Hartford  &  New  H.  R.  v.  Boorman,  12  Conn.  630 ;  Ayles- 
bury R.  r.  Mount,  5  Scott,  New  R.  127. 

*  Waterford,  Wexford,  Wicklow,  &  D.  R.  r.  Pidcock,  18  Eng.  L.  &  Eq.  517. 
8.  c.  17  Jur.  26 ;  s.  c.  22  Law  J.  Rep.  (n.  8.)  Exch.  146 ;  8.  c.  8  Exch.  279. 
Where  the  company  accept  a  conveyance  of  sliares  to  themselves,  it  will  ex- 
onerate the  owner  from  calls.  But  a  sale  to  another  company  of  all  the  effects 
of  the  company,  will  not  release  the  shareholders  from  calls  already  made. 
Plate  Glass  Insurance  Co.  v.  Sunley,  8  El.  &  Bl.  47. 

*  Miller  v.  Second  Jefferson  Building  Association,  50  Penn.  St.  32.  And  where 
the  company  accept  another  in  the  place  of  the  original  subscriber,  the  latter  is 
wholly  released.    Haynes  v.  Palmer,  13  Louis.  An.  240. 

•  185 


186  ASSESSMENTS   OR   CALLS.  CH.  IX. 

SECTION    IX. 

Defences  to  actions  for  Calls. 


1.  Informality  in  organization  of  company 

insufficient, 

2.  Slight  acquiescence  estops  the  party  in  some 

cases. 
8,  4.   Default  in  frst  payment  insufficient. 


6.  Contract  for  stock,  to  be  paid  in  ciher 

stock. 

7,  8.   Infancy.     Statute  of  limitations  and 

bankruptcy. 
9.    One  commissioner  can  give  no  valid  as- 


6.    Company  and  subscriber  may  waive  that   j  surance  as  to  the  route. 

condition.  |  10.    What  representations  matters  of  opinion. 

§  55.  1.  It  is  certainly  not  competent  for  a  subscriber,  when 
sued  for  calls,  to  go,  in  his  defence,  into  every  minute  deviation 
from  the  express  requirements  of  the  charter,  in  the  organization 
and  proceedings  of  the  company.  Any  member  of  the  association, 
who  intends  to  hold  the  company  to  the  observance  of  those 
matters  whicli  are  merely  formal,  should  be  watchful,  and  inter- 
pose an  effectual  barrier  to  their  further  progress,  at  the  earliest 
opportunity,  by  mandamus,  or  injunction  out  of  chancery,  or 
other  appropriate  mode.^  In  cases  of  this  kind  often,  where  vast 
*  expense  has  been  incurred,  and  important  interests  are  at  stake, 
courts  will  incline  to  conclude  a  member  of  the  association,  by 
the  briefest  acquiescence,  in  any  such  immaterial  irregularity,  and 
often,  in  regard  to  those,  which,  if  urged  in  season,  might  have 
been  regarded  as  of  more  serious  moment.  In  one  case,^  Tindal, 
Ch.  J.,  says,  in  regard  to  the  offer  of  a  plea,  that  the  money  sued 
for,  being  the  amount  of  a  call,  was  intended  for  other  purposes 
than  those  warranted  by  the  act,  "  It  seems  to  me  it  was  never 
intended,  nor  ought  it  to  be  allowed,  that  so  general  a  question  as 
that  should  be  litigated,  in  the  question,  whether  a  call  is  due 
from  an  individual  subscriber."  And  it  was  held  no  sufficient 
ground  of  enjoining  the  directors  from  making  calls,  that  the 
proceedings  had  been  such  as  to  amount  to  an  abandonment  of 
the  enterprise,  as  it  was  possible  that  there  were  still  legal  obliga- 

'  The  London  &  Brighton  Railw,  Co.  v.  Wilson,  6  Bing.  N.  C.  135.  This 
case  decides,  that  a  plea,  that  the  company  had  made  deviations  in  their  line,  and 
that  the  money  sued  for  was  needed  only  in  regard  to  such  deviations,  could  not 
be  entertained  or  regarded  as  a  proper  inquiry  in  an  action  for  calls  upon  shares ; 
and  so  also  of  a  plea,  that  fewer  shares  had  been  allotted  than  the  act  required. 
Walford,  279 ;  Wight  v.  Shelby  RaUway,  16  B.  Mour.  5.  ' 
•  186 


§  55.  DEFENCES  TO   ACTIONS  FOR  CALLS.  187 

tions  to  answer.^  And  where  the  directors  were  authorized  to 
limit  the  number  of  shares,  but  could  not  proceed  with  the  road 
until  two  hundred  and  fifty  shares  were  subscribed,  and  after  that 
number  were  taken  they  resolved  to  close  the  books,  it  was  held 
that  this  vote  was  equivalent  to  a  vote  fixing  the  number  of  shares, 
and  that  the  company  might  therefore  proceed  to  make  and  en- 
force calls,  under  the  statute,  and  to  collect  the  deficiency  remain- 
ing, after  the  sale  of  forfeited  stock.^ 

2.  But  where  the  statute  prescribes  the  terms  on  which  shares 
may  be  sold,  it  must  be  strictly  followed,  or  the  sale  will  he  void, 
as  where  the  prescribed  notice  is  not  given.*  And  it  would  seem, 
tliat  the  courts  are  reluctant  to  admit  defences  to  actions  for 
calls,  upon  the  ground  of  informality  in  the  proceedings  of  the 
company,  or  even  of  alleged  fraud,  where  there  has  been  any 
considerable  acquiescence  on  the  part  of  the  shareholder.^ 

*  3.  It  seems  to  have  been  held,  in  some  cases,  that  a  subscriber 
for  stock  may  defend  against  an  action  for  calls,  upon  the  ground 
that  he  did  not  pay  the  amount  required  by  the  charter  to  be  paid 
down  at  the  time  of  subscription.^ 

4.  But  it  is  questionable  how  far  one  can  be  allowed  to  plead  his 
•own  non-performance  of  a  condition  in  discharge  of  his  undertak- 
ing. And  a  different  view  seems  to  have  obtained  to  some  extent.'^ 
It  has  been  held  the  stockholder  cannot  object,  that  he  has  not 
complied  with  the  charter,  after  having  voted  at  the  election  of 
officers,  or  otherwise  acted  as  a  shareholder.^    And  so  also  where 

'  Logan  V.  Coartown,  5  Eng.  L.  &  Eq.  171. 

'  Lexington  &  West  Cambridge  R.  v.  Chandler,  13  Met.  311. 

*  Portland,  Saco,  &  Portsmouth  R.  r.  Graham,  11  Met.  1. 

"  Walford,  278,  279;  Cromford  &  High  P.  R.  r.  Lacey,  3  Y.  &  Jer.  80; 
Mangles  r.  Grand  Collier  Dock  Co.,  10  Sim.  519 ;  8.  c.  2  Railw.  C.  359 ;  Thorpe 
©.  Hughes,  3  Mylne  &  Cr.  742. 

*  Highland  Tump.  Co.  v.  McKean,  11  Johns.  98 ;  Jenkins  v.  Union  Tump. 
Co.,  1  Caines's  Cas.  in  Error,  86 ;  Hibcmia  Tumpike  Co.  v.  Henderson,  8  S.  & 
R.  219 ;  Charlotte  &  C.  R.  r.  Blakely,  3  Strob.  245. 

^  Hcnrj-  r.  The  Vennilion  R.  17  Ohio,  187.  A  similar  rule  is  recognized  in 
Louisiana,  in  the  case  of  Vicks.  S.  &  Texas  Railw.  v.  McKean,  12  La.  Ann.  638. 

'  Clark  p.  Monongahela  Nav.  Co.,  10  Watts,  364.  Nor  can  a  subscriber, 
after  having  transferred  his  stock  to  another,  thus  treating  it  as  a  valid  security, 
object,  in  the  trial  of  a  suit  against  him  on  the  original  subscription,  that  the 
same  was  originally  invalid,  by  reason  of  the  non-payment  of  the  sums  rcMiuisito 
to  give  it  validity,  at  the  time  of  making  the  subscription.  Everhart  c.  Wert 
Chester  &  Ph.  Railw.,  28  Penn.  St.  339. 

•  187 


188  ASSESSMENTS   OB   CALLS.  CH.  IX. 

the  subscription  is  made,  while  defendant  held  the  books  of  the 
company  and  acted  as  commissioner.^  And  *  payment  before  the 
books  are  closed,  has  been  held  sufficient  to  bind  the  subscriber.^® 
So  also  if  the  sum  have  been  collected  by  suit.^^  And  a  promissory 
note  has  been  held  good  payment,  where  the  charter  required  cash 
on  the  first  instalment,  at  the  time  of  subscription. ^^^  And,  by 
parity  of  reason,  if  the  subscription  binds  the  subscriber  to  pay  for 
the  stock  taken,  in  conformity  to  the  requisitions  of  the  charter, 
which  is  the  more  generally  received  notion  upon  the  subject  at 
present,  we  do  not  well  comprehend  why  the  subscription  itself 
may  not  be  regarded  as  efiectual,  to  create  the  subscriber  a  stock- 
holder, and  as  much  a  compliance  with  the  condition  to  pay,  as 
giving  a  promissory  note.  In  either  case,  the  company  obtain  but 
a  right  of  action  for  the  money,  and  if  the  party  can  be  allowed  to 
urge  his  own  default  in  defence,  it  is  perhaps  no  compliance  with 
the  charter.  But  upon  the  ground  that,  so  far  as  the  subscriber  is 
concerned,  the  company  may  waive  this  condition,  upon  what  is 
equivalent  to  payment,  it  ought  also  to  be  equally  held,  that  when 

And  where  commissioners  were  appointed,  by  an  act  of  the  legislature,  and 
were  authorized  to  receive  subscriptions  for  the  purpose  of  constructing  a  rail- 
way, no  subscription  to  be  valid  unless  five  dollars  was  paid  upon  each  share- 
at  the  time  of  subscribing ;  the  act  providing  that  when  a  certain  number  of 
shares  shall  have  been  so  subscribed,  and  the  same  certified  under  the  oath  of  the 
commissioners  to  the  governor,  he  should  issue  letters-patent,  incorporating 
the  subscribers,  and  such  as  should  thereafter  subscribe,  and  this  was  done,  and 
the  company  duly  organized,  it  was  held : 

That  the  act  imposed  no  restriction  upon  the  corporation  after  it  was  organ- 
ized, in  regard  to  the  pajTnent  of  the  five  dollars  at  the  time  of  subscription. 
That  the  condition,  that  subscriptions  should  not  be  valid  till  a  certain  amount 
was  subscribed,  was  one  which  the  parties  had  a  right  to  annex  to  the  contract 
of  subscription,  and  as  such,  was  valid,  and  the  subscriptions  could  not  be  en-t 
forced  till  the  condition  was  performed.  Philadelphia  &  West  Chester  Railw. 
V.  Hickman,  28  Penn.  St.  318.  See  also  Black  River  &  Utica  Railw.  Co.  r. 
Clarke,  25  N.  Y.  208 ;  H.  «&  P.  Plank  Road  Co.  v.  Bryan,  6  Jones  Law,  82 ; 
Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491. 

»  Highland  Tump.  Co.  r.  McKean,  11  Johns.  98;  Grayble  v.  The  York  & 
Grettysburg  Tump.  Co.,  10  Serg.  &  Rawle,  269.  So  also  if  one  act  as  a  stock- 
holder in  the  organization  of  the  company.  Greenville  &  Columbia  Railw.  v. 
Woodsides,  5  Rich.  145. 

'"  Klein  p.  Alton  &  Sangamon  Railw.,  13  111.  514. 

»  HaU  ».  Selma  &  Ten.  Railw.,  6  Alabama,  741. 

"  McRae  v.  Russell,  12  Ired.  224 ;  Selma  &  Ten.  Railw.  r.  Tipton,  5  Ala- 
bama, 787 ;  Tracy  v.  Yates,  18  Barb.  152 ;  Greenville  &  Columbia  Railw.  v. 
Woodsides,  5  Rich.  145 ;  Mitchell  v.  Rome  Railw.,  17  Geoi^ia,  574. 
♦188 


§  65.  DEFENCES   TO   ACTIONS   FOB  CALLS.  189 

the  subscriber  has  obtained  such  a  waiver,  for  his  owu  case,  he 
shall  be  estopped  to  deny,  that  it  was  so  far  a  compliance  with  the 
charter  as  to  render  the  contract  binding. 

0.  And  upon  the  other  hand,  the  company  having  consented  to 
accept  the  subscriber's  promise,  instead  of  money,  for  the  first  in- 
stalment, cannot  defeat  his  right  to  be  regarded  as  a  stockholder, 
on  account  of  his  not  complying  with  a  condition  which  they  have 
expressly  waived.  It  would  seem,  that  under  these  circumstances, 
the  immediate  pitrties  to  the  contract  could  not  obtain  any  advan- 
tage over  each  other,  by  reason  of  the  waiver,  of  strict  performance 
of  such  condition,  by  mutual  consent.  But  the  objection  must 
come  properly  from  some  other  quarter,  either  the  public,  or 
the  other  shareholders.  And  possibly  the  cases  decided  upon  this 
subject  do  not  justify  any  such  *  relaxation,  even  between  the  par- 
ties to  the  immediate  contract  of  subscription.  Upon  general 
principles,  applicable  to  the  subject,  as  educed,  from  the  law  of 
contracts,  we  see  no  objection  to  the  waiver  of  such  a  condition  on 
behalf  of  the  company.  And  if  there  be  any  objection  upon  other 
grounds,  it  is  not  for  the  benefit  of  the  subscriber.^^ 

"  It  has  been  held  that  the  misstatement  of  the  length  of  the  road,  in  the 
articles  of  association,  if  there  be  no  fraud ;  or  the  lease,  or  sale,  of  the  fran- 
chises of  the  corporation  to  another  company,  which  is  void ;  or  the  neglect  to 
make  the  whole  road,  even  without  legislative  sanction,  will  not  exonerate  a  sub- 
scriber from  paying  calls.  Troy  &  Rutland  Railw.  v.  Kerr,  17  Barb.  581.  But 
where  a  preliminary  subscription  is  required,  it  must  be  absolute  and  not  de- 
pendent upon  conditions.  Troy  &  Boston  Railw.  r.  Tibbits,  18  Barb.  297.  But 
a  condition  that  provides  for  interest,  by  way  of  dividends,  to  paying  subscribers, 
until  the  full  completion  of  the  road,  at  the  expense  of  subscribers  who  do  not 
pay,  or  one  that  imposes  a  limitation  upon  the  directors  in  calling  in  stock,  is 
void  as  being  against  good  policy.     lb. 

In  a  case  in  Kentucky,  Wight  r.  Selby  Railw.,  16  B.  Monr.  5  it  was  held, 
that  a  subscription  to  stock,  in  a  railway,  is  not  rendered  invalid  by  reason  of 
the  subscriber's  failure  to  pay  a  small  sum  required  by  the  charter  to  be  paid 
upon  each  share  when  he  subscribed.  Himpson,  J.  "  It  was  their  duty  to 
pay  it,  at  the  time  the  stock  was  subscribed,  but  they  should  not  be  allowed 
to  take  advantage  of  their  own  wrong,  and  release  themselves  from  their  whole 
obligation,  by  a  failure  to  perform  part  of  it."  This  seems  to  us  a  sound  view  Of 
the  subject,  and  the  only  one,  which  is  consistent  with  the  general  principles  of 
the  law  of  contract,  as  applicable  to  the  question. 

In  a  more  recent  case,  S.  subscribed  for  $500  of  stock  in  a  railway  com- 
pany upon  the  understanding  that  the  first  ten  per  cent  required  by  law  to  be 
paid  in  cash  upon  subscribing  should  be  paid  by  his  services  in  securing  subscrip- 
tions and  right  of  way.     He  subsequently  presented  an  account  against  the  com- 

•  189 


190  ASSESSMENTS  OB  CALLS.  CH.  IX. 

*  6.  An  agreement  to  take  stock  and  pay  in  the  stock  of  a  canal 
company,  and  an  offer  of  the  canal  stock,  will  not  make  the  party 
liable  to  pay  money .^* 

pany  for  services,  from  which  it  appeared,  that  at  the  date  of  the  subscription  the 
company  was  indebted  to  him  in  an  amount  greater  than  the  cash  payment  re- 
quired, in  which  account  he  applied  and  credited  $50  for  ten  per  cent  upon  his 
subscription,  and  $50  for  the  first  call  made  thereon.  The  account  was  allowed 
by  the  company,  and  the  balance  paid  by  S.  Held,  that  this  was  a  sufficient 
compliance  with  the  statute  in  respect  to  the  payment  of  the  first  ten  per  cent, 
and  made  the  subscription  obligator^'  upon  S.  Beach  v.  Smith,  30  N.  Y.  116. 
See  also  Vicksburg,  Sh.  and  Texas  R.  Co.  r.  McKean,  12  La.  Ann.  638. 

In  this  case  it  is  further  held,  to  be  no  valid  defence  to  a  subscription  to  the 
stock  of  a  railway,  that  it  was  delivered  as  an  escrow  to  one  of  the  commission- 
ers appointed  to  receive  subscriptions.  It  should  have  been  delivered  to  a  third 
person,  to  become  effectual  as  an  escrow.  Such  subscribers  are  presumed  to 
know  the  conditions  of  the  charter  under  which  the  subscription  is  taken,  and 
that  if  they  desire  to  make  their  subscriptions  conditional,  it  must  be  so  expressed 
in  the  written  terms  of  subscription,  and  that  it  is  not  competent  to  deliver  a 
written  contract,  as  an  escrow,  to  the  partj'  himself.  For,  to  admit  oral  evidence 
of  such  a  condition,  in  the  deliver}-  of  a  written  contract  to  the  party  benefited 
thereby,  is  a  practical  abandonment  of  the  rule  of  evidence,  that  such  testimony 
is  incompetent  to  control  a  written  contract. 

It  has  been  held,  that  it  is  not  competent  for  the  commissioners  to  accept  the 
check  of  a  subscriber  in  paj-ment  of  the  amount  required  by  the  charter  to  be 
paid  at  the  time  of  subscription,  but  that  specie,  or  its  equivalent,  must  be  de- 
manded. Crocker  ».  Crane,  21  Wend.  211 ;  s.  c.  2  Am.  Railw.  C.  484.  But 
this  is  at  variance  with  the  general  course  of  decision,  unless  in  regard  to  banks, 
where  the  charter  expressly  requires  the  pajinent  to  be  in  specie.  King  r. 
Elliott,  5  Sm.  &  M.  428. 

And  where  the  charter  of  a  railway  company  was  made  to  depend  upon  the 
condition  of  the  company  expending  $50,000  in  two  years,  and  completing  the 
road  in  four  years  from  the  date  of  the  grant,  and  the  company  having  failed  in 
the  first  part  of  the  condition,  but  having  obtained  subscriptions  to  their  stock  to 
a  large  amount,  and  the  defendant  being  one  of  the  subscribers,  the  company 
having  organized,  and  chosen  directors,  the  defendant  being  one  of  them,  the 
legislature  revived  and  renewed  the  charter,  and  extended  the  time  for  the 
performance  of  such  condition ;  and  subsequently  to  this,  a  meeting  of  the  stock- 
holders was  called  by  the  commissioners,  in  which  the  defendant  took  part, 
additional  directors  being  appointed,  and  at  a  meeting  of  the  directors,  the  defend- 
ant being  present,  a  call  was  made  upon  the  subscriptions,  it  was  held  that  this 
amounted  to  an  acceptance  of  the  renewal  of  the  charter,  and  was  such  a  recog- 
nition of  the  former  organization  of  the  company,  as  to  amount  to  a  sufficient 
organization  imder  the  new  charter,  and  the  defendant  was  held  to  be  estopped 
by  his  conduct  from  denying  the  regularity  of  these  proceedings,  and  to  be  lia- 


^*  Swatara  Railw.  v.  Brune,  6  Gill,  41. 
190 


§  55.  DEFENCES  TO   ACTIONS   FOB  CALLS.  191 

7.  Infancy  is  a  good  defence,  if  the  person  be  an  infant  at  the 
*  time  of  suit  brought,  or  if  he  repudiate  the  subscription  within  a 
reasonable  time  after  coming  of  full  age.^^  By  the  general  pro- 
visions of  the  English  statute,  all  persons  may  become  shareholders, 
thore  being  no  exception,  in  terms,  in  favor  of  infants ;  and  if  one 
be  registered  while  an  infant,  and  suffer  his  name  to  remain  on  the 
registry  after  he  becomes  of  full  age,  he  is  liable  for  calls,  whether 
made  while  he  was  an  infant,  or  afterwards.^*    *  It  seems  to  be 

ble  to  pay  calls  on  his  stock.  Danbury  &  Norwalk  Railw.  v,  Wilson,  22  Conn. 
436. 

'Where  the  general  railway  law,  under  which  a  company  is  organized,  requires 
a  pa^nnent  of  ten  per  cent  upon  each  subscription  before  the  filing  of  the  articles 
of  association  with  the  secretary  of  state,  it  is  sufficient,  if  the  cash  pa}'ments,  by 
whomsoever  made,  amount  in  the  aggregate  to  ten  per  cent  upon  $1,000  for 
each  mile  of  the  road  proposed  to  be  constructed.  Lake  Ontario,  A.  &  New 
York  Railw.  v.  Mason,  16  N.  Y.  451.  And  the  subscription  to  stock  before  the 
incorporation  of  the  company,  is  obligatory  upon  the  company,  although  the 
subscriber  make  no  cash  payment  whatever,  the  right  of  membership  thereby 
acquired  being  a  sufficient  consideration  for  the  subscription.  lb.  Ante,  § 
61,  n.  1. 

'»  North  W.  Railw.  r."  McMichael,  5  Exch.  114 ;  Birkenhead  Railw.  v.  Pil- 
cher,  5  Exch.  121 ;  8.  c.  6  Railw.  C.  622.  The  party  should  also  deny  having 
derived  any  advantage  from  the  shares,  or  offer  to  restore  them.  N.  W.  Railw. 
r.  McMichael,  5  Exch.  114;  Leeds  &  T.  Railw.  v.  Feamley,  4  Exch.  26;  Dub- 
lin &  W.  Railw.  p.  Black,  16  Eng.  L.  &  Eq.  556;  8.  c.  8  Exch.  181.  See  also 
Deposit  &  G.  Life  Assur.  Co.  p.  Ayscough,  6  E.  &  B.  761. 

"  Cork  &  Bandon  Railw.  r.  Cazenove,  10  Q.  B.  935.  But  it  would  seem 
that  infants  arc  not  comprehended,  by  the  general  terms  of  the  English  statute. 
Birkenhead,  &c.  Railw.  p.  Pileher,  supra. 

It  has  been  said  that  an  infant  shareholder,  or  subscriber,  in  a  railway  com- 
pany, is  in  the  same  situation  as  in  regard  to  real  estate,  or  any  other  valuable 
property,  which  he  may  have  purchased  and  received  a  conveyance  of.  If,  upon 
coming  of  age,  he  disclaim  the  contract,  and  restore  the  thing,  with  all  advan- 
tages arising  from  it,  his  liability  is  terminated,  and  he  cannot  be  made  liable 
for  calls.  Farke,  B.,  in  Birkenhead  &  C.  Railw.  p.  Pileher,  6  Railw.  C.  625. 
The  infant  is  not  regarded  as  merely  assuming  an  executory  undertaking,  which 
is  void  on  the  face  of  it,  but  in  the  nature  of  a  purchaser  of  what  is  presumed 
to  be  valuable  to  him. 

Where,  therefore,  there  is  nothing  but  the  simple  fact  of  infancy  pleaded  to 
an  action  for  calls,  it  is  insufficient.  lb.  It  would  seem  that  the  plea  should 
contain  averments,  showing  the  disadvantageous  nature  of  the  contract  to  the 
infant,  his  repudiation  of  the  contract,  and  restitution  of  all  benefits  derived 
under  it,  on  coming  of  full  age,  or  that  he  is  still  an  infant,  and  is  ready  to  do 
so,  upon  coming  of  full  age.  McMichael  p.  London  &  N.  W.  Railw,,  o  Exch. 
866;  8.  c.  6  Railw.  C.  618;  Birkenhead  &  C.  Railw.  p.  Pileher,  5  Exch.  121 ; 

•191,  192 


192  ASSESSMENTS   OB   CALLS.  CH.  IX. 

doubted  by  the  English  courts  whether  the  statute  of  limitations  as 
to  simple  contracts  applies  to  an  action  for  calls,  that  being  a 
liability  imposed  by  statute,  and  so  to  be  regarded  as  a  specialty.^' 

8.  Bankruptcy  is  a  good  defence  for  calls  made  after  the  cer- 
tificate of  bankruptcy  issues,  but  to  meet  liabilities  incurred 
before.^® 

9.  One  of  the  commissioners  appointed  with  five  others  at  a 
given  place  to  take  subscriptions  to  a  railway,  has  no  right  in  doing 
so  to  give  any  assurance  as  to  the  line  of  location  that  would  be 
adopted  by  the  company  .^^ 

10.  And  where  the  subscription  is  made  upon  condition  of  the 
road  going  in  a  particular  route,  the  plaiutifiT  may  show  that  the 
defendant  owned  land  upon  that  route.  And  any  representations 
of  the  agents  taking  the  subscriptions,  as  to  the  ultimate  value  of 
the  stock,  will  be  regarded  as  matters  of  opinion  merely  upon 
which  the  subscriber  had  no  right  to  rely.^ 

8.  c.  6  Railw.  C.  564,  662.  The  mere  plea  of  infancy  is  an  immaterial  plea,  and 
issue  being  joined  thereon,  and  found  for  defendant,  the  plaintiff  is  still  entitled 
to  judgment  veredicto  non  obstante.     lb. 

The  plea  must  show  that  the  infant  avoids  the  contract  of  subscription,  on  his 
coming  of  full  age.  Leeds  and  Thirsk  Railw.  r.  Feamley,  5  Railw.  C.  644 ; 
8.  c.  4  Exch.  26.  And  the  appearance  by  attorney  is  not  equivalent  to  an  aver- 
ment that  the  defendant  is  of  full  age.     lb. 

But  where  the  plea  alleged,  that  the  defendant  became  the  holder  of  shares, 
by  reason  of  his  having  contracted  and  subscribed  for  them,  and  not  otherwise ; 
and  that  at  the  time  of  his  so  contracting  or  subscribing,  and  also  at  the  time  of 
making  the  calls,  he  was  an  infant ;  and  that  while  he  was  an  infant  he  repudi- 
ated the  contract  and  subscription,  and  gave  notice  to  the  plaintiffs  that  he  held 
the  shares  at  their  disposal ;  it  was  held  a  good  prima  facie  bar ;  and  that  if  the 
defendant,  after  he  came  of  full  age,  disaffirmed  his  repudiation,  or  if  he  become 
liable,  by  enjoyment  of  the  profits,  those  facts  should  be  replied.  Newry  & 
Enniskillen  Railw.  v.  Coombe,  3  Exch.  565 ;  8.  c.  5  Railw.  C.  633. 

Where  shares  were  sold  to  an  infant,  and  were  duly  transferred  to  him,  on 
the  declaration  of  the  vendor  that  he  was  of  full  age,  arid  the  father  of  such 
infant,  by  a  deed,  reciting  that  he  had  purchased  on  behalf  of  the  son,  and  cove- 
nanting that  he,  on  coming  of  age,  would  execute  the  deed,  and  pay  all  calls, 
and  that  the  father  would  indemnify  the  company  against  all  costs,  by  reason  of 
the  son  being  an  infant,  it  was  held  that  the  father  was  a  contributory.  Ex 
parte  Reaveley,  1  De  G.  «&  S.  550.  See  also  Stikeman  r.  Dawson,  4  Railw.  C. 
686 ;  8.  c.  1  De  G.  &  S.  90. 

"  Cork  &  B.  Railw.  v.  Goode,  18  C.  B.  618;  8.  c.  24  Eng.  L.  &  Eq.  246. 

>9  Chappie's  case,  17  Eng.  L.  &  Eq.  516 ;  s.  c.  5  De  G.  &  Sm.  400. 

•»  North  Carolina  Railw.  r.  Leach,  4  Jones  Law,  340. 

»  Vawter  r.  Ohio  &  Miss.  R.  Co.,  14  Ind.  174. 


§56. 


FUNDAMENTAL   ALTERATION  OP  CHARTER. 


19S 


•SECTION   X 


Fundamental  alteration  of  Charter. 


1.  Will  release  the  std>scr{bers  to  stock. 

2.  Railway  company  cannot  purchase  steam- 

boat*. 
8,  7.  Majority  may  bind  company  to  altera- 
tions, not  Jundamental. 

4.  Directors  cannot  \tse  the  funds  for  purpotet 

foreign  to  the  organization. 

5.  9.   But  where  the  legislature  or  the  directors 

make  legal  alterations  in  the  charter,  or 
the  location  of  the  road,  it  will  not  re- 
lease subscribers. 

6.  But  if  subscriptions  are  made  upon  con- 

dition of  a  particular  location,  it  must 
be  complied  with. 


8,  9.  Consideration  of  subscription,  being 
location  of  road,  must  be  substantially 
performed. 

10.  Express  conditions  must  be  performed. 

11.  How  far  alterations  may  be  made  without 

releasing  subscribers. 

12.  It  may  be  done  where  such  power  is  re- 

served in  the  charter. 
18.  Personal  representative  liable  to  same  ex- 
tent as  subscriber. 

14.  Money  subscriptions  not  released  by  sub- 

sequent ones  in  land. 

15.  Corporation  cannot  emigrate  into  another 

state  even  by  legislative  permission. 


§  56.  1.  There  can  be  no  doubt,  that  subscribers  to  the  stock 
of  a  railway  company  are  released  from  their  obligation  to  pay  calls 
by  a  fundamental  alteration  of  the  charter.  This  is  so  undeniable, 
and  so  familiar  a  principle,  in  the  general  law  of  partnership,  as 
not  to  require  confirmation  here.  We  shall  briefly  advert  to  the 
points  decided  in  some  of  the  more  prominent  cases,  in  regard  to 
incorporated  companies.  The  general  doctrine  applicable  to  the 
subject  is  very  perspicuously  stated  by  Woodbury,  J.,  in  an  early 
case  in  New  Hampshire.^  "  Every  owner  of  shares  expects,  and 
stipulates,  with  the  other  owners,  as  a  corporate  body,  to  pay  them 
his  proportion  of  the  expenses,  which  a  majority  may  please  to 
incur,  in  the  prosecution  of  the  particular  objects  of  the  corpora- 
tion. To  make  a  valid  change  in  this  special  contract,  as  in  any 
other,  the  consent  of  botli  parties  is  indispensable." 

2.   In  an  important  case  ^  where  it  appeared  that  after  calls  fell 

'  Union  Locks  &  Canal  Co.  v.  Towne,  1  N.  Hamp.  44.     But  where  the  origi- 
nal charter  or  preliminary  contract  provides  for  modifications,  the  subscribers  , 
are  still  bound  by  all  such  as  come  fairly  within  the  power.     Cork  &  Youghal 
Railway  v.  Patterson,  18  C.  B.  414 ;  8.  c.  37  Eng.  L.  &  Eq.  898 ;  post,  §  264, 
n.  6 ;  Nixon  v.  Brownlow,  30  Law  Times,  74 ;  s.  c.  3  H.  &  N.  686. 

»  Hartford  &  New  Haven  Railw.  r.  Croswell,  6  Hill,  383.  In  Winter  v.  Mus- 
cogee Railw.,  11  Ga.  438,  the  charter  was  so  altered  as  to  allow  the  road 
to  stop  short  of  its  original  terminus  and  pass  in  a  different  route,  and  subscrib- 
ers to  the  stock  were  held  thereby  released,  unless  they  assented  to  the  altera- 

18  *  193 


194  ASSESSMENTS  OR   CALLS.  CH.  IX. 

*  due,  but  before  suit  brought,  the  company,  being  incorporated  for 
the  purpose  of  building  a  railway,  procured  an  additional  special 
act,  by  which  they  were  authorized  to  purchase  steamboats :  it  was 
held,  that  a  subscriber,  not  having  assented  to  the  alteration,  was 
absolved  from  his  obligation  to  pay  calls. 

3.  In  a  very  elaborate  opinion  of  Bennett,  Chancellor,^  upon  this 
subject,  the  following  propositions  are  established :  — 

tion.  But  where  one  gave  his  note  for  the  first  instahnent,  and  his  stock  was 
forfeited,  for  non-pajTnent  of  calls,  he  is  not  relieved  from  pajTnent  of  his  note  by 
a  material  alteration  of  the  charter.  Mitchell  r.  Rome  Railw.,  17  Ga.  574. 
But  any  modification  of  the  charter  which  affects  merely  the  detail  of  proceedings 
in  making  and  enforcing  calls  will  not  release  subscribers  to  the  stock,  when 
such  modification  has  been  accepted  by  the  corporation.  Illinois  River  Railw. 
Co.  V.  Beers,  27  Illinois,  185. 

^  Stevens  r.  Rutland  &  Burlington  Railw.,  29  Vt.  545.  The  opinion  at 
length  is  a  valuable  commentary  upon  this  important  subject.  In  this  opinion 
the  learned  chancellor  maintains,  — 

1.  That  by  the  implied  contract,  among  the  proprietors  of  aU  joint-stock  un- 
dertakings, there  is  a  tacit  inhibition  against  applying  the  funds,  for  any  purpose 
beside  the  general  scope  of  the  original  enterprise,  and  that  this  applies  to  cor- 
porations, equally  with  commercial  partnerships.  Natusch  v.  Irving,  Gow  on 
Part.  App.  567.  And  that  courts  of  equity  will  restrain  a  corporation  from  thus 
misapplying  its  funds  by  injunction.  "Ware  v.  Grand  Junction  Water  Co.,  2  Rus- 
sell &  Mylne,  461.  And  that  this  will  be  done  upon  the  application  of  those 
shareholders  who  dissent.  And  in  some  instances  will  restrain  the  company 
from  applying  to  the  legislature  for  an  enlargement  of  their  powers.  Cunliff  r. 
Manchester  &  Bolton  Canal  Co.,  13  Eng.  Cond.  Ch.  131 ;  s.  c.  2  Russell  &  My. 
470,  475 ;  Livingston  r.  Lj-nch,  4  Johns.  Ch.  573. 

2.  That  if  the  proposed  alteration  is  only  auxiliary  to  the  main  design  of  the 
original  organization,  it  will  not  be  enjoined ;  but  if  it  be  fundamental,  it  will 
be.  That  a  variation  in  the  course  of  a  turnpike-road  has  been  regarded  as  a 
fundamental  alteration  in  the  charter,  Middlesex  Turnpike  Co.  r.  Lock,  8  Mass. 

268,  and,  as  such,  to  exonerate  subscribers  to  the  stock  of  the  original  com- 
pany. [But  Irvine  v.  The  Turnpike  Co.,  2  Penn.  466,  holds  it  will  not  have 
that  effect.]  And  that  in  such  cases  it  will  make  no  difference,  that  the  sub- 
scriber was  a  director  in  the  company,  and  joined  in  the  petition  to  the  legisla- 
ture for  the  alteration.  Same  v.  Swann,  10  Mass.  884 ;  Same  v.  Walker,  10 
Mass.  390. 

The  learned  chancellor  regarded  the  case  of  Revere  r.  The  Boston  Copper 
Co.,  which  was  cited,  by  the  counsel  for  the  defendants,  as  making  rather  against 
his  purpose.  15  Pick.  351,  363.  The  case  of  Hartford  &  New  Haven  Railw. 
r.  Croswell,  5  Hill,  383,  385,  is  relied  upon,  as  having  defined  a  fundamental 
alteration  of  the  charter  of  a  corporation,  in  the  language  of  Ch.  J.  Ndson,  to  be 
one  "by  which  a  new  and  different  business  is  superadded  to  that  originally 
contemplated." 

8.  No  one  can  be  made  a  member  of  a  joint-stock  corporation  without  his  con- 
•194 


§  56.  FUNDAMENTAL  ALTERATION  OP  CHARTER.  196 

*1.  That  a  majority  of  a  joint-stock  company  cannot  use  the 
joint  property  except  within  the  legitimate  scope  of  their  charter, 

sent.  Ellis  r.  Marshall,  2  Mass.  269;  nor  can  he  be  compelled  to  remain  a 
member  of  such  company  after  its  fundamental  organization  is  altered  by  act  of 
the  legislature.  But  an  act  of  the  legislature  allowing  a  navigation  company  to 
raise  their  dam  above  the  point  of  the  original  charter  limit,  is  in  furtherance  of 
the  original  grant,  and  will  not  exonerate  the  subscribers.  Gray  v.  I^Iononga- 
hela  Navigation  Co.,  2  Watts  &  Serg.  156.  And  an  alteration  in  the  number  of 
votes,  to  be  cast  by  stockholders,  if  it  impair  the  obligation  of  the  contract  re- 
sulting from  the  grant,  is  void,  and  so  cannot  release  the  subscribers.  Osbom 
V.  Bank  of  United  States,  9  "Wheat.  738.  But  any  statute  which  has  the  force 
to  effect  an  alteration  in  the  structure  of  the  corporation,  will  release  subscribers. 
Indiana  &  Ebensburg  Tump.  Co.  v.  Phillips,  2  Penn.  184. 

4.  That  statutes  extending  the  term  of  a  corporation,  for  closing  up  its  busi- 
ness, on  petition  of  the  directors,  have  no  proper  bearing  upon  the  question. 
Lincoln  &  K.  Bank  v.  Richardson,  1  Greenl.  79 ;  Foster  v.  The  Essex  Bank,  16 
Mass.  245. 

5.  That  it  is  no  fatal  objection  to  the  application  that  it  is  made  at  the  insti- 
gation of  a  rival  enterprise.  Coleman  v.  Eastern  Counties  Ilailw.,  10  Beavan, 
1.  [But  see  ante,  §  20.] 

6.  That  an  existing  railway  company  will  be  restrained  in  equity  from  apply- 
ing its  present  funds  to  extend  their  line,  or  improve  the  navigation  of  a  river 
connected  with  their  line,  or  for  obtaining  an  act  of  the  legislature,  authorizing 
them  to  do  so.  Hunt  r.  Shrewsbury  &  Chester  Railw.,  13  Beav.  1 ;  s.  c.  3 
Eng.  L.  &  Eq.  144;  Coleman  v.  Eastern  Co.'s  Railw.,  10  Beavan,  1. 

7.  That  members  of  an  existing  company  cannot  be  compelled  to  surrender 
their  interest  to  the  company,  or  to  others,  and  retire,  in  order  to  enable  them 
to  change  the  character  of  the  enterprise.  Lord  Eldun,  Chancellor,  in  Natusch 
r.  Irving,  supra. 

8.  In  favor  of  the  importance  and  .necessity  of  having  this  constant  super- 
vision exercised  over  joint-stock  companies,  in  order  to  keep  them  within  the 
range  of  their  legitimate  functions,  the  learned  chancellor  thus  concludes :  — 

"■WTiere  it  is  clearly  shown  that  a  cori)oration  is  about  to  exceed  its  powers, 
and  to  apply  their  funds  or  cnjdit  to  some  object  beyond  their  authority,  it 
would,  if  the  purpose  of  the  corporation  was  carried  out,  constitute  a  breach  of 
trust ;  a  court  of  equity  cannot  refuse  to  give  relief  by  injunction.  Agar  v.  The 
Regent's  Canal  Co.,  Cooper's  Eq.  77 ;  The  River  Dun  Navigation  Co.  c.  North 
Midland  Railw.  Co.,  1  Railw.  C.  153,  164.  The  last  case  was  before  the  Lord 
Chancellor,  and  he  uses  this  language :  '  If  these  companies  go  beyond  the 
powers  which  the  legislature  has  given  them,  and,  in  a  mistaken  exercise  of  those 
powers,  interfere  with  the  property  of  individuals,  this  court  is  bound  to  inter- 
fere ;  and  that  was  Lord  Eldun''s  ground  in  Agar  p.  The  Regent's  Canal  Co.' 
'ITie  lonl  chancellor  further  adds :  '  I  am  not  at  liberty  (even  if  I  were  in  the 
least  disposed,  which  I  am  not)  to  withhold  the  jurisdiction  of  this  court,  as  ex- 
ercised in  the  case  of  Agar  v.  The  Regent's  Canal  Co.'  In  that  case  Lord  Eldon 
proceeded  simply  on  the  ground  that  it  was  necessary  to  exercise  this  jurisdic- 
tion of  chancer)-,  for  the  purpose  of  keeping  these  companies  within  the  powers 

•196 


196  ASSESSMENTS  OR  CALLS.  CH.  IX. 

*  aud  if  they  attempt  to  do  so  equity  will  restrain  them.  2.  The 
shareholders  are  bound  by  such  modifications  of  the  charter  as  are 
not  fundamental,  but  merely  auxiliary  to  the  main  design.  3.  If 
a  majority  of  a  railway  company  obtain  an  alteration  of  tlieir  char- 
ter, which  is  fundamental,  as  to  enable  them  to  build  an  extension 
of  their  road,  any  shareholder  who  has  not  assented  *  to  the  act, 
may  restrain  the  company,  by  injunction,  from  applying  the  funds 
of  the  original  organization  to  the  extension. 
4.   In  a  late  case  before  the  Master  of  the  Rolls,*  it  was  held 

which  the  acts  give  them.  And  it  is  added :  '  And  a  most  wholesome  exercise 
of  the  jurisdiction  it  is ;  because,  great  as  the  powers  necessarily  are,  to  enable 
the  companies  to  carrj-  into  effect  works  of  this  magnitude,  it  would  be  most 
prejudicial  to  the  interests  of  all  persons  with  whose  property  they  interfere,  if 
there  was  not  a  jurisdiction  continually  open,  and  ready  to  exercise  its  power  to 
keep  them  within  their  legitimate  limits.' 

"The  injunction  must,  therefore,  be  allowed;  but  only  so  far  as  to  restrain 
the  defendants,  imtU  the  further  order  of  the  chancellor,  from  applying,  the  pres- 
ent funds  of  the  corporation,  or  their  income  from  their  present  road,  either 
directly  or  indirectly,  to  the  purpose  of  building  said  extension  in  said  road,  or  to 
pay  land  damages  and  other  expenses  which  may  be  contingent  upon  the  build- 
ing of  it :  and  also  from  using  or  pledging,  directly  or  indirectly,  the  credit  of 
the  corporation  in  effecting  the  object  of  the  extension ;  and  at  the  same  time, 
the  company  will  be  left  at  liberty  to  build  the  extension  with  any  new  funds 
which  they  may  see  fit  to  obtain  for  that  specific  object."  See  also  Gifford  v. 
New  Jersey  Railw.,  2  Stockton's  Ch.  171,  where  this  subject  is  examined  some- 
what at  length  by  the  chancellor,  and  the  conclusion  arrived  at,  that  it  is  com- 
petent for  a  court  of  equity  to  interfere  in  the  management  and  application  of 
the  funds  of  a  corporation,  at  the  instance  of  a  single  stockholder ;  that  the  leg- 
islature may  give  additional  power  from  time  to  time  to  corporations,  and  that 
such  acts  are  binding,  unless  they  conflict  with  vested  rights,  or  impair  the 
obligation  of  contracts.  •  That  a  stockholder  in  an  existing  corporation  has  a 
vested  right  in  any  exclusive  privilege  of  the  corporation  which  tends  to  enhance 
the  value  of  its  stock,  and  that  he  would  not  be  bound  by  any  act  of  the  legisla- 
ture tending  to  produce  such  effect,  without  his  consent ;  but  that  such  consent 
•will  be  inferred  from  long  acquiescence,  which  is  equivalent  to  express  consent. 
In  Scofield  v.  School  District,  27  Conn.  499,  it  was  held  by  a  divided  court,  that 
one  inhabitant  of  a  school  district  might  obtain  an  injunction  against  the  cor- 
poration denpng  them  the  power  to  use  their  school-house  for  the  purposes  of 
religious  meetings  and  Sunday  schools,  which  is  certainly  carrying  the  doctrine 
to  the  very  verge  of  absurdity.     Post,  §  174,  n.  7. 

*  Colman  v.  Eastern  Counties  Railw.,  10  Beav.  1 ;  s.  c.  4  Railw.  C.  513. 
See  also  Munt  v.  Shrewsburj*  &  Chester  Railw.,  13  Beav.  1 ;  s.  c.  3  Eng.  L. 

6  Eq.  144 ;  East  Anglian  Railw.  v.  Eastern  Counties  Railw.,  11  C.  B.  775 ;  s.  c. 

7  Eng.  L.  &  Eq.  605;  MacGregor  p.  Deal  &  Dover  Railw.,  18  Q.  B.  618;  s.  c. 
16  Eng.  L.  &  Eq.  180;  Danbury  &  Norwalk  Railw.  v.  Wilson,  22  Conn. 
435;  Mill-Dam  Co.  r.  Dane,  30  Maine,  347;  post,  §-235;  Winter  v.  Mus- 

*  196,  197 


§  56.  FUNDAMENTAL  ALTERATION   OP  CHARTEB.  197 

that  directors  have  no  right  to  enter  into  or  to  pledge  the  funds  of 
the  company  in  support  of  any  project  not  pointed  out  by  their  act, 
altliough  such  project  may  tend  to  increase  the  traffic  upon  the 
railway,  and  may  be  assented  to  by  the  majority  of  the  shareholders, 
and  the  object  of  such  project  may  not  be  against  public  policy. 
And  that  acquiescence  by  shareholders  in  a  project  for  ever  so  long 
time,  aflfords  no  presumption  of  its  legality.  And  in  a  late  case  in 
this  country  it  is  held,  that  the  subscriber  having  acted  as  director 
of  the  corporation,  and  as  such  having  participated  in  the  proceed- 
ings to  effect  the  alteration,  will  not  make  him  liable  for  calls,  upon 
his  original  subscription.* 

5.  But  it  is  no  defence  to  an  action  for  calls,  that  the  directors 
have  altered  the  location  of  the  road,  if  by  the  charter  they  had  the 
discretion  to  do  so.®  And  if  the  charter  contain  a  provision  that 
the  Jegislatiire  may  alter  or  amend  the  same,  the  exercise  of  this 
power  will  not  absolve  the  shareholders  from  their  liability  to  pay 
calls."    And  all  subscriptions  to  stocks,  and  all  contracts  *  for  the 

cogee  Railw.,  11  Ga.  488;  Hamilton  Plank  Road  v.  Rice,  7  Barb.  167;  Com- 
monwealth r.  Cullen,  1  Harris,  133 ;  3  Woodbury  &  Minot,  105. 

*  Maccdon  Plank  Road  Co.  v.  Lapham,  18  Barb.  812.  But  see  Greenville  & 
Columbia  Railw.  v.  Coleman,  5  Rich.  118. 

•  Colvin  p.  The  Turnpike  Co.,  2  Carter,  611 ;  id.  656. 

Nor  is  it  a  defence  to  an  action  for  calls,  that  the  name  of  the  company,  or  the 
length  and  termini  of  the  road,  have  been  materially  altered.  Del.  &  Atlantic 
Railw.  V.  Irick,  3  Zab.  321. 

'  Northern  Railw.  r.  Miller,  10  Barb.  260 ;  Pacific  Railw.  v.  Renshaw,  18 
Missouri,  210.  And  where  a  subscription  is  made  to  the  capital  stock  of  a  rail- 
way, while  an  act  of  the  legislature  exists,  allowing  the  consolidation  of  such  com- 
pany with  another,  the  fact  that  such  consolidation  is  subsequently  made  affords 
no  ground  for  avoiding  the  subscription.  Bish  v.  Johnson,  21  Ind.  299.  And 
if,  from  the  articles  of  association  of  the  company,  it  is  obvious  that  consolida- 
tion with  another  company  was  one  of  the  leading  purposes  of  the  incorporation, 
the  fact  of  such  consolidation,  afler  the  date  of  a  subscription,  will  be  no 
defence  against  its  enforcement,  even  when  the  statute  authorizing  the  consoli- 
dation is  subsequent  to  the  date  of  the  subscription.  Hanna  v.  Cin.  &  F.  W. 
Railw.,  20  Ind.  30.  The  consolidation  of  two  corporations  does  not  effect  the 
dissolution  of  either,  so  as  to  work  the  abatement  of  pending  actions.  Baltimore 
&  Susq.  Railw.  v.  Musselman,  2  Grant  Cas.  MS.  But  see  McMahan  v.  Morrison, 
16  Ind.  172,  contra.  For  many  purposes  the  liabilities  of  the  original  com- 
panies remain,  as  before  the  consolidation.  Central  Railw.  Co.  v.  Bunn,  3  Stockt. 
Ch.  336.  It  is  here  decided,  that  where  the  original  company  and  a  new  com- 
pany formed  by  the  mortgagees  after  sale  of  the  road  bear  the  same  name  and 
have  the  same  president,  a  suit  to  enforce  a  claim  contracted  before  the  sale, 
served  upon  the  president,  cannot  go  to  judgment  against  the  new  company,  nor 

•198 


198  ASSESSMENTS   OR   CALLS.  CH.  IX. 

purchase  of  stock,  to  be  delivered  at  a  future  day,  must  be  under- 
stood to  be  made  subject  to  the  exercise  of  all  tlie  legal  powers  of 
the  directors  and  of  the  legislature,  and  an  illegal  exercise  of  power 
by  either  will,  it  has  sometimes  been  said,  bind  no  one,  and  should 
exonerate  no  one  from  his  just  obligations.^ 

6.  But  where  subscriptions  are  made  upon  the  express  con- 
dition that  the  road  shall  go  in  a  particular  place,  the  perform- 
ance of  such  condition  is  commonly  regarded  as  indispensable 
to  the  liability  of  the  subscribers,  the  same  as  in  other  contracts.* 
But  an  alteration  in  the  line  of  the  road,  which  does  not  affect 
the  interest  of  the  subscriber,  will  not  absolve  him  from  his  sub- 
scription.i^ 

And  when  the  subscription  was  made  upon  condition  that  the 
road  be  located  upon  a  given  line,  and  providing  that  such  *  location 
should  be  sufficiently  evinced  by  an  order  of  the  board  of  direct- 
ors accepting  such  subscription  upon  the  condition  named,  it  was 
held  sufficient  to  bind  the  subscriber,  that  the  road  had  been  in 
fact  located  and  built  upon  the  line  designated,  and  that  this  was 
known  to  him,  although  there  had  been  no  formal  action  of  the 
board  accepting  the  subscription. ^^ 

7.  And  an  alteration  in  the  charter,  which  consists  only  of  an 
increase  of  the  corporate  powers,  or  of  a  different  organization  of 
the  corporate  body,  leaving  it  with  lawful  power  to  execute,  what 

will  a  court  of  equity  allow  a  general  judgment,  at  law,  to  be  taken.  The  plain- 
tiflF  must  elect  to  take  judgment,  in  terms,  against  the  original  company.  This 
seems  to  be  a  very  judicious  course,  but  one  for  which  courts  of  equity  will  aiford 
no  precedent.  The  order  should  have  been  made,  most  obviously,  in  the  court 
of  law. 

^  Irvin  tJ.  Turnpike  Co.,  2  Penn,  466 ;  Conn.  &  Pas.  Rivers  Railw.  v  Bailey, 
24  Vt.  479 ;  Faulkner  v.  Hebard,  26  Vt.  452 ;  Fry's  Exr.  v.  Lex.  &  Big  S. 
RaQw.,  2  Met.  (Ky.)  314. 

®  See  cases  under  notes  2  &  3,  supra ;  and  also  Railsback  v.  Liberty  &  Abing- 
ton  Tump.  Co.,  2  Carter  (Ind.)  656.  And  in  Kenosha,  Rockford,  and  Rock 
Island  R.  Co.  v.  Marsh,  17  Wiscons.  13,  it  was  held,  that  where  the  legisla- 
ture had  the  general  power  to  repeal  or  alter  acts  of  incorporation,  and  accord- 
ingly allowed  an  existing  company,  chartered  to  carry  a  railway  over  a  given 
line,  and  whose  subscriptions  had  been  taken  with  that  view,  to  change  their 
route  very  essentially,  the  subscribers  were  thereby  released  from  their  obli% 
gation  to  pay  calls. 

'"  Banet  v.  Alton  &  Sangamon  Railw.,  13  111.  604;  Danbury  &  Norwalk 
Railw.  V.  Wilson,  22  Conn.  435. 

"  Moore  r.  New  Albany  &  Salem  Railw.  Co.,  15  Ind.  78. 
*  199 


§  56.  FUNDAMENTAL   ALTERATION  OP  CHARTER.  199 

may  he  regarded  as  substantially  the  original  object  of  its  crea- 
tion, will  not  exonerate  subscribers  to  the  stock  of  the  company.^ 
So  too  where  the  general  laws  of  the  state  provide  that  all  acts 
of  incorporation  may  be  altered,  amended,  or  repealed  by  the 
legislature,  it  is  no  defence  to  a  subscription  for  stock,  that 
subsequently  the  legislature  increased  the  liability  of  the  stock- 
holders.^3 

8.  And  notwithstanding  much  apparent  conflict  in  the  cases 
upon  this  subject,  it  will  be  found  to  be  the  general  result  of  the 
best  considered  cases,  that  the  alteration,  either  in  the  charter  of 
the  company,  or  the  line  of  the  road,  to  exonerate  the  subscriber 
for  stock,  must  be  one  which  removes  the  prevailing  motive  for 
the  subscription,  or  else  materially  and  fundamentally  alters  the 
responsibilities  and  duties  of  the  company,  and  in  a  manner  not 
*  provided  for,  or  contemplated,  either  in  the  charter  itself  or  the 
general  laws  of  the  state." 

"  Pacific  Railw.  v.  Hughs,  22  Missouri,  291 ;  Peoria  &  Oquawka  Railw.  v. 
Elting,  17  ni.  429.  In  Everhart  v.  West  Chester  and  Philadelphia  Railw., 
28  Penn.  St.  839,  the  subscribers  for  stock  were  held  not  released  by  such  a 
change  in  the  charter  of  the  company  as  empowered  them  to  issue  preferred  stock, 
to  enable  them  to  raise  the  means  of  making  and  equipping  the  road  in  the  man- 
ner originally  contemplated.  It  was  considered  that  such  an  amendment  of  the 
charter  was  merely  ancillary  to  the  main  design,  and  might  be  accepted  by  a 
majority  of  the  stockholders  and  thus  become  binding  upon  all ;  that  it  is  im- 
plied in  every  subscription  for  the  stock  in  a  railway  company,  that  they  may 
resort  to  the  ordinary  and  legal  means  for  accomplishing  the  object  proposed  by 
the  charter. 

It  is  here  said,  that  an  alteration  of  the  charter,  which  superadds  an  entirely 
new  enterprise,  will  release  subscriptions  to  the  stock.  See  also  Fry's  Exr.  v. 
Lex.  &  Big.  S.  Railw.,  2  Met.  (Ky.)  314. 

"  South  Bay  Meadow  Dam  Co.  v.  Gray,  30  Maine,  647 ;  Buffalo  &  New 
Y.  City  Railw.  r.  Dudley,  4  Keman,  336. 

"  But  in  the  Greenville  &  Columbia  Railw.  r.  Coleman,  6  Rich.  118,  where 
the  charter  gave  the  stockholders  the  right  to  designate  the  routo^they  preferred, 
and  if  any  stockholder  was  dissatisfied  with  the  route  selected,  the  right  to  with- 
draw his  subscription,  "  provided,  at  the  time  of  subscribing,  he  designated  the 
route  he  desires  to  be  selected,"  and  one  subscribed  without  designating  the 
route  he  preferred,  under  an  assurance  from  one,  who  was  soliciting  subscrip- 
tions, that  he  might  pay  $5  on  $100,  and  be  free  from  liability  as  to  the  residue, 
it  was  held,  that  he  was  liable,  as  a  stockholder,  without  the  right  to  with- 
draw. But  some  of  the  American  cases  do  not  seem  to  recognize  any  alteration 
in  the  route  of  the  road,  even  one  which  renders  it  practically  a  different  enter- 
prise, as  a  defence  to  subscriptions  for  stock.  Central  Plank  Road  Co.  ». 
Clemens,  16  Mo.  859.     But  in  Champion  v.  Memphis  &  Charleston  R.  Co., 

*200 


200  ASSESSMENTS   OE  CALLS.  CH.  IX. 

9.  Where  a  town  or  city  stipulate  with  a  railway  company  for 
adequate  consideration  to  terminate  *their  route,  at  a  point  bene- 
ficial to  such  town  or  city,  this  will  not  preclude  the  company  from 
forming  connections  with  other  routes,  by  land  or  water,  at  the 
same  point.^ 

10.  And  where  the  plaintiflf  made  it  a  condition  of  his  subscrip- 
tion to  the  capital  stock  of  a  railway,  that  it  should  pass  through 
some  portion  of  the  counties  of  Monroe  and  Ontario,  and  the  road 
was  so  located  as  not  to  touch  either  of  those  counties,  it  was  held, 
that  he  was  released  from  his  subscription. ^^ 

35  Miss.  692,  it  was  decided,  that  when  the  route  on  which  a  railroad  is  to  be 
located  is  prescribed  by  its  charter,  a  subsequent  material  deviation  from  the  route 
therein  prescribed  will  release  the  stockholders  who  had  previously  subscribed, 
and  who  did  not  consent  to  the  deviation. 

It  is  not  ever)-  deviation  in  the  location  of  a  railroad  from  the  route  prescribed 
in  the  charter  which  will  release  non-assenting  stockholders,  and  it  is  impracti- 
cable to  lay  down  any  general  rule  to  serve  as  a  guide  in  determining  the  ques- 
tion of  the  materiality  of  the  deviation.  Each  case  must  be  determined  by  its 
own  particular  circimistances ;  and  hence,  where  a  stockholder  resists  the  col- 
lection of  his  subscription  for  stock,  upon  the  ground  of  a  deviation  from  the 
route  prescribed  by  the  charter,  he  ought  to  set  out  in  his  plea  such  deviation 
clearly  and  distinctly,  so  that  its  materiality  can  be  determined. 

A  plea  by  a  stockholder  in  a  railway  company,  setting  up  a  deviation  from  the 
route  prescribed  by  the  charter  as  a  defence  to  a  suit,  to  enforce  his  subscription 
for  stock,  which  describes  the  deviation  as  follows :  "  That  said  road  was  not  con- 
structed in  accordance  with  the  requirements  of  the  charter,"  is  bad  for  uncertainty. 

'*  Baltimore  &  Ohio  Railw.  r.  Wheeling,  13  Grattan,  40. 

'«  Buffalo,  Coming,  &  N.  Y.  Railw.  v.  Pottle,  23  Barb.  21.  And  where  a 
partj-,  who  was  not  a  stockholder,  executed  a  promissory  note  to  a  railway  com- 
pany, promising  to  pay  them  $200,  in  consideration  that  they  would  locate  their 
depot  in  block  9-t,  in  Indianapolis,  to  be  paid  when  the  company  should  com- 
mence the  construction  of  their  depot,  and  the  line  of  the  company's  road  ex- 
tended from  Terre  Haute,  through  Indianapolis,  to  Richmond,  a  distance  of 
150  miles,  at  the  date  of  the  note,  but  by  subsequent  act  of  the  legislature,  was 
divided,  at  Indianapolis,  and  the  portion  between  Indianapolis  and  Richmond, 
being  about  one-half,  was  given  to  another  company,  which  built  their  depot  in 
another  portion  of  Indianapolis,  the  former  company  only  constructing  a  freight 
depot,  on  block  94,  it  was 

Held,  that  by  the  alteration  of  the  charter  of  the  Terre  Haute  and  Richmond 
Railway  Company,  and  the  acceptance  thereof  by  the  company,  the  company 
became  substantially  a  different  corporation,  and  were  unable  to  perform  the 
condition  upon  which  the  note  was  to  become  payable,  and  that  the  circumstance, 
that  the  depot  located  on  block  94  was  of  some  advantage  to  the  plaintiff  in 
error,  was  of  no  importance. 

But  an  amalgamation  of  two  railway  companies,  effected  subsequent  to  the 


§  56.  FUNDAMENTAL   ALTERATION   OF   CHABTEB.  201 

*  11.  Where  the  articles  of  incorporation  of  a  railway  company 
restrict  calls  upon  subscriptions  to  twenty  per  cent  in  one  year, 
*  and  teA  per  cent  at  one  time,  and  also  provide  that  said  articles 
may  at  any  time  be  changed  by  the  unanimous  consent  of  the 
board  of  directors,  it  is  competent  for  the  board  to  so  change  the 
mode  of  making  calls,  as  to  require  them  to  be  made  not  exceed- 
ing five  per  cent  a  month,  and  such  change  in  the  articles  as  to 
the  mode  of  making  calls  will  be  binding  upon  previous  subscrip- 
tions." 

12.  And  in  a  somewhat  recent  case  ^^  it  was  held,  where  the 
legislature  had  reserved,  in  the  charter  of  a  corporation,  the  power 
to  modify  or  repeal  the  same,  that  members  of  the  corporation  hold 
their  shares  subject  to  such  liability  as  may  attach  in  consequence 

date  of  a  subscription  to  the  stock  of  one  of  them,  but  which  had  been  authorized 
by  an  act  of  the  legislature  prior  to  that  time,  will  not  release  the  subscription. 
And  it  is  of  no  importance,  that  the  consolidation  took  place  without  the 
knowledge  of  the  subscriber.  Sparrow  c.  Evansville  &  Crawfordsville  Railway, 
7  Porter  (Ind,),  369. 

The  subscription  of  stock  to  an  amalgamated  company  is  a  sufficient  consent 
to  the  amalgamation.  And  such  consent  by  the  stockholders  seems  to  be  re- 
garded as  requisite  to  the  power  of  the  legislature  to  amalgamate  existing  rail- 
way companies.  Fisher  r.  Evansville  &  Crawfordsville  Railway,  7  Porter  (Ind.) , 
407.  Where  one  of  the  stockholders  of  a  railway  company  agreed  with  the 
company  to  subscribe  and  take  a  given  number  of  shares  in  the  capital  stock,  if 
the  company  would  adopt  a  particular  route,  there  being  two  under  considera- 
tion, and  the  company  in  consequence  adopted  that  route,  it  was  held  that  the 
party  was  boundpby  his  contract  to  take  and  pay  for  the  number  of  shares  he 
had  thus  agreed  to  subscribe.  Spartanburgh  &  Union  Railw.  v.  De  Graffenreid, 
12  Rich.  675.  But  where  in  such  a  case,  by  a  subsequent  amendment  of  the 
charter,  the  route  in  consideration  of  which  the  subscription  was  made  was 
abandoned,  and  another  adopted,  the  subscriptions  were  held  to  be  thereby 
avoided.  Hester  r.  Memphis  &  Charleston  Railw.,  32  Miss.  378.  But  one  who 
makes  an  absolute  subscription  to  a  railway,  cannot  avoid  it  by  proving  a  parol 
condition  upon  which  it  was  made,  not  complied  with,  unless  he  show  that  fraud 
also  existed  in  the  contract.  North  Carolina  Railw.  v.  Leach,  4  Jones  Law,  340. 
One  of  the  commissioners,  there  being  five,  has  no  power  to  give  any  binding 
assurance  as  to  the  location.     lb. 

If  the  party  have  any  remedy  in  such  case  by  mandamus  or  injunction,  where 
the  directors  locate  the  road  differently  from  the  requirements  of  the  charter, 
and  omit  to  resort  to  it  at  once,  he  is  bound  by  such  acquiescence.     lb. 

"  Buriington  &  Mo.  River  Railw.  r.  White,  6  Clarke.  409. 

'*  Bailey  r.  IlolHster,  26  N.  Y.  112.  But  it  is  here  suggested,  that  after  the 
charter  of  a  corporation  has  expired,  there  is  no  power  to  reviTC  it,  by  any 
agency  less  than  the  consent  of  all  the  corporators. 

•201,202 


202 


ASSESSMENTS   OR   CALLS. 


CH.  IX. 


of  the  extension  or  renewal  of  the  charter,  although  obtained  with- 
out their  consent. 

13.  And  it  was  also  here  considered,  that  the  estate  6f  an  in- 
testate shareholder  succeeded  to  the  personal  responsibility  of  the 
deceased  in  the  corporation,  and  this  will  render  the  administrator 
liable  for  the  debts  of  the  corporation  contracted  after  the  decease 
of  the  intestate,  to  the  same  extent  the  deceased  would  liave  been 
if  still  living ;  and  that  the  stockholder  or  his  personal  representa- 
tive can  only  relieve  himself  from  responsibility  by  a  bona  fide  and 
absolute  sale  of  the  stock. 

14.  A  railway  company  do  not  release  money-subscriptions  by 
accepting  large  land-subscriptions  at  a  subsequent  date.^^ 

15.  And  a  railway  corporation,  chartered  in  one  state  to  con- 
struct and  operate  a  road  within  that  state,  cannot  emigrate  into 
another  state,  even  where  that  state  had  given  legislative  permis- 
sion to  act  therein.  And  after  having  transferred  its  business 
office  into  another  state,  where  it  performed  all  its  corporate  func- 
tions, it  is  not  competent  for  it  to  make  valid  calls  in  such  other 
state  upon  subscriptions  taken  in  the  place  of  its  creation  .^^ 


♦  SECTION    XL 


Subscriptions  before  date  of  Charter. 


1.  Subscriptions  before  date  of  charter  good. 

2.  Subscriptions  upon  condition  not  performed. 
n.  4.    Where  the  condition  is  performed. 

3.  Subscription  by  a  stranger  to  induce  com- 

pany to  build  station. 

4.  Subscription  on  condition,  an  offer  merely 


5.  Conditional  subscrij^on  takes  effect  upon 

performance  of  the  condition. 

6.  How  far  commissioners  may  annex  con- 

ditions to  subscription. 

7.  Such  conditions  void,  if  fraudulent  as  to 

company. 


§  57.  1.  It  has  been  held  that  oue  who  subscribes  before  the 
act  of  incorporation  is  obtained,  and,  by  parity  of  reason,  before 
the  organization  of  the  company,  although  after  the  act  of  incor- 
poration, is  holden  to  the  corporation,  to  pay  the  amount  of  his 
subscription.  And  a  suit  is  sustainable,  in  their  name,  upon  any 
securities  given  in  the  name  of  the  association,  or  of  the  commis- 
sioners for  organizing  the  company,  and  equally  upon  the  sub- 

'»  Hornaday  v.  Ind.  &  111.  Central  Railw.,  9  Ind-  263. 
"  Aspinwall  v.  Ohio  &  Mississippi  Railw.  Co.,  20  Ind.  492. 
*203 


§  57.  SUBSCRIPTIONS   BEFORE   DATE   OF   CHARTER.  203 

scription  itself  in  the  name  of  the  corporation.*  And  it  is  not 
competent  for  one,  who  is  a  subscriber  to  such  an  enterprise,  to 
withdraw  his  name  while  the  act  of  incorporation  is  going  through 
the  legislature.^ 

2.  But  an  informal  subscription,  which  is  never  carried  through 
the  steps  necessary  to  constitute  the  subscribers  members  of  the 
company,  has  been  held  inoperative,  as  no  *  compliance  with  the 
act.^  And  a  subscription,  upon  condition  that  the  road  is  built 
through  certain  specified  localities,  the  company  at  the  time  not 
assuming  to  build  the  road  through  those  places,  will  not,  it  has 
been  held,  make  the  subscriber  liable  to  an  action  for  calls,  even 
if  the  condition  be  ultimately  performed  by  the  company.*    But 

'  Kidwelly  Canal  Co.  r.  Raby,  2  Price,  Exch.  98 ;  Selma  &  Tenn.  Railw. 
Co.  V.  Tipton,  5  Alabama,  786 ;  Vermont  Central  Railw.  Co.  v.  Clayes,  21  Vt. 
SO;  Delaware  and  Atlantic  Kailw.  v.  Irick,  3  Zab.  321. 

In  the  last  case,  the  very  point  niled,  is,  whether  the  company  were  proper 
plaintiffs,  in  an  action  to  enforce  calls  against  one  who  signed  the  commissioners' 
paper  for  shares  before  the  organization.  Held,  the  commissioners  were  to  be 
regarded  as  agents  of  the  company.  See  also  Troy  &  Boston  Railw.  p.  Tibbets, 
18  Barb.  297 ;  Stanton  p.  Wilson,  2  Hill,  153 ;  Troy  &  Boston  Railw.  v.  Warren, 
18  Barb.  310 ;  Hamilton  Plank  Road  Co.  v.  Rice,  7  Barb.  157  ;  Stewart  v.  Hamil- 
ton College,  2  Denio,  417  ;  Danbury  &  N.  Railw.  r.  Wilson,  22  Conn.  435.  So 
also  a  subscription  to  the  capital  stock  of  a  railway,  made  on  the  solicitation  of 
one  who  was  not  a  commissioner,  but  who  felt  an  interest  in  the  road,  and  volun- 
teered to  take  up  subscriptions  to  its  stock,  was  held  valid  in  a  very  recent  case. 
Railway  Company  r.  Rodrigues,  10  Rich.  (S.  C.)  278. 

*  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  Exch.  93 ;  Brownlee  r.  Ohio,  Ind.  & 
111.  Railw.  Co.,  18  Ind.  68. 

'  Troy  &  Boston  Railw.  r.  Tibbits,  18  Barb.  298. 

*  Macedon  &  Bristol  Plank  R.  f.  Lapham,  18  Barb.  313.  In  this  case  it 
seems  to  have  been  decided  that  such  a  subscription  is  not  good,  as  a  subscrip- 
tion for  stock,  not  upon  the  ground  mainly  that  it  was  conditional  and  so  against 
public  policy,  or  from  want  of  mutuality,  but  upon  the  ground  of  an  extension  of 
the  road  and  an  increase  of  the  capital  stock.  But  see  also  Utica  &  Sch.  Railw. 
V.  Brinckerhoff,  21  Wend.  139,  where  such  a  decision  is  made.  But  the  current 
of  authority,  both  English  and  American,  is  almost  exclusively  in  a  counter 
direction.  It  is  impossible,  upon  any  fair  ground  of  construction,  to  consider 
such  a  subscription,  where  the  road  is  located  in  a  given  line,  in  faith,  and  in 
fulfilment  of  the  condition,  as  a  mere  offer,  unaccepted.  It  is  a  proffer,  a 
proposal,  accepted,  and  as  much  binding  as  any  other  possible  consideration. 
But  if  it  were  to  be  regarded  as  a  mere  offer,  standing  open,  upon  every 
principle  of  reason  and  law,  when  accepted,  according  to  its  terms,  it  is  binding 
as  a  contract  and  no  longer  revocable,  and  the  only  case,  of  much  weight,  which 
ever  attempted  to  maintain  the  opposite  view,  that  of  Cooke  v.  Oxley,  3  T.  R. 

•204 


204  ASSESSMENTS   OR  CALLS.  CH.  IX. 

one  might  perhaps  raise  some  question,  *  whether,  upon  general 
principles,  such  a  subscription  ought  not   to   be   binding,  as  a 

653,  has  been  regarded  as  overruled  upon  that  point  for  many  years.  See 
L'Amoreux  v.  Gould,  3  Selden,  349 ;  Conn.  &  Passumpsic  Rivers  Railw.  v. 
Bailey,  24  Vt.  478. 

In  the  case  of  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224,  the  subject  is 
verj-  justly  illustrated  by  Mr.  Justice  Fletcho':  "  In  the  present  case,  though  the 
writing  signed  by  the  defendants  was  but  an  offer,  and  an  offer  which  might  be 
revoked,  yet,  while  it  remained  in  force  and  unrevoked,  it  was  a  continuing  offer 
during  the  time  limited  for  acceptance ;  and,  during  the  whole  of  that  time,  it 
was  an  offer  every-  instant;  but  as  soon  as  it  was  accepted  it  ceased  to  be  an  offer 
merely,  and  then  ripened  into  a  contract.  The  counsel  for  the  defendants  is 
most  surely  in  the  right,  in  saying  that  the  writing  when  made  was  without  con- 
sideration, and  did  not,  therefore,  form  a  contract.  It  was  then  but  an  offer  to 
contract ;  and  the  parties  making  the  offer  most  undoubtedly  might  have  with- 
drawn it  at  any  time  before  acceptance. 

"  But  when  the  offer  was  accepted,  the  minds  of  the  parties  met,  and  the  con- 
tract was  complete.  There  was  then  the  meeting  of  the  minds  of  the  parties, 
which  constitutes  and  is  the  definition  of  a  contract.  The  acceptance  by  the 
plaintiffs  constituted  a  sufficient  legal  consideration  for  the  engagement  on  the 
part  of  tlie  defendants.  There  was  then  nothing  wanting  in  order  to  perfect  a 
valid  contract  on  the  part  of  the  defendants.  It  was  precisely  as  if  the  parties 
had  met  at  the  time  of  the  acceptance,  and  the  offer  had  then  been  made  and 
accepted,  and  the  bargain  completed  at  once. 

"A  different  doctrine,  however,  prevails  in  France,  and  Scotland,  and  Hol- 
land. It  is  there  held,  that  whenever  an  offer  is  made,  granting  to  a  party  a 
certain  time  within  which  he  is  to  be  entitled  to  decide  whether  he  will  accept 
it  or  not,  the  party  making  such  offer  is  not  at  liberty  to  withdraw  it  before  the 
lapse  of  the  appointed  time.  There  are  certainly  very  strong  reasons  in  support 
of  this  doctrine.  Highly  respectable  authors  regard  it  as  inconsistent  with  the 
plain  principles  of  equity,  that  a  person  who  has  been  induced  to  rely  on  such  an 
engagement  should  have  no  remedy  in  case  of  disappointment.  But,  whether 
wisely  and  equitably  or  not,  the  common  law  unyieldingly  insists  upon  a  consid- 
eration, or  a  paper  with  a  seal  attached. 

"  The  authorities,  both  English  and  American,  in  support  of  this  view  of  the 
subject,  are  verj'  numerous  and  decisive  ;  but  it  is  not  deemed  to  be  needful  or 
expedient  to  refer  particularly  to  them,  as  they  are  collected  and  commented  on 
in  several  reports  as  well  as  in  the  text-books.  The  case  of  Cooke  r.  Oxley,  3 
T.  R.  653,  in  which  a  different  doctrine  was  held,  has  occasioned  considerable 
discussion,  and,  in  one  or  two  instances,  has  probably  influenced  the  decision. 
That  case  has  been  supposed  to  be  inaccurately  reported,  and  that  in  fact  there 
was  in  that  case  no  acceptance.  But,  however  that  may  be,  if  the  case  has  not 
been  directly  overruled,  it  has  certainly  in  later  cases  been  entirely  disregarded, 
and  cannot  now  be  considered  as  of  any  authority. 

"As,  therefore,  in  the  present  case,  the  bill  sets  out  a  proposal  in  writing, 
and  an  acceptance  and  an  offer  to  perform,  on  the  part  of  the  plaintiffs,  within 
»206 


§  57.  SUBSCRIPTIONS   BEFORE   DATE  OF  CHARTER.  205 

standing  offer  accepted  and  acted  upon  by  the  company,  which  is 
sufficient  consideration  for  the  promise.* 

3.  And  even  where  a  mere  stranger  subscribes  to  a  railway 
company,  with  others,  in  order  to  induce  the  company  to  build  a 
station  house  and  improve  the  roads  to  it,  and  to  aid  the  company 
in  such  work,  and  the  company  perform  the  condition  on  their 
part,  the  subscription  is  upon  sufficient  consideration,  and  may  be 
enforced  against  the  subscribers.* 

4.  And  a  subscription  to  the  stock  of  a  railway  company,  con- 
ditioned to  be  void  unless  the  company  would  accept  the  convey- 
ance of  a  specific  tract  of  land  at  a  given  price,  is  a  mere  offer  to 
invest  the  land  in  shares,  and  until  accepted  by  the  company  is 
of  no  validity." 

•  5.  A  subscription  upon  the  performance  of  a  condition  be- 
comes absolute  upon  such  performance.  The  subscription  takes 
effect  from  that  time ;  the  first  instalment  required  to  be  paid  at 
the  time  of  subscription  then  becomes  due  and  payable,  and  the 
subscriber  liable  to  assessment  for  the  remainder.^ 

6.  There  is  a  recent  case  *  wherein  propositions  arc  declared 
which  seem  at  variance  with  the  general  rule,  that  subscriptions 
dependent  upon  conditions  are  not  effectual  until  such  conditions 
are  complied  with.  It  was  here  held,  that  commissioners  ap- 
pointed to  receive  subscriptions  to  the  stock  of  a  projected  railway 
company  are  so  far  limited  in  their  authority  that  they  have  no 
power  to  attach  conditions  to  subscriptions  received  by  them,  and 
where  they  do  so  the  act  is  not  binding  upon  the  company,  and 
that  after  the  organization  of  the  corporation,  the  directors  have 
no  power  to  assume  the  subscriptions  upon  the  conditions  named, 
i.  e.  that  the  company  assume  the  payment  of  the  subscriptions 
and  release  the  subscribers. 

7.  But  we  apprehend  that  if  this  decision  is  maintainable  upon 

the  time  limited,  and  while  the  offer  was  in  full  force,  all  which  is  admitted  by 
the  demurrer,  so  that  a  ralid  contract  in  writing  is  shown  to  exist,  the  demurrer 
must  be  overruled." 

•  See  this  subject  more  fully  discussed  in  §§  51,  65,  ante.  See,  also,  Johnson 
c.  Wabash  &  M.  V.  Railw.,  16  Ind.  389. 

•  Kennedy  v.  Colton,  28  Barb.  59. 

'  Junction  Railway  Company  r.  Reeve,  15  Ind.  236. 

•  AshUbula  &  New  L.  Railw.  r.  Smith,  16  Ohio  N.  S.  328. 

•  Bedford  Jlailw.  Co.  v.  Bowser,  48  Penn.  St.  29.  See,  also,  Lowe  c.  E.  & 
K.  RaUw.,  1  Head,  659. 

•206 


206  ASSESSMENTS   OE  CALLS.  CH.  IX. 

recognized  rules  of  law,  it  must  be  because  the  whole  scheme  of 
such  a  subscription  evidences  a  covert  fraud  upon  the  contempla- 
ted corporation,  and  that  the  act  of  the  directors  is  but  one  step 
in  fulfilment  of  the  scheme,  as  the  case  shows  the  action  of  the 
first  board  of  directors  was  immediately  repealed  upon  the  coming 
in  of  a  new  board,  and  the  court  held  it  competent  to  show  what 
took  place  at  the  time  of  passing  the  first  resolutions  with  a  view 
to  establish  the  fraudulent  purpose. 


*  SECTION  XII. 

Subscription  upon  Special  Terms. 


1.  Subscriptions  not  pat/able  in  money. 

2.  Subscriptions  at  a  discount,  not  binding. 
n.    2.    Contracts  to  release  subscriptions  not 

binding. 

3.  Subscriptions  afier  organization. 

4.  President  may  accept  conditional  subscrip- 

tions. 

5.  Recent  case  in  Alabama. 

6.  True  rule  to  be  deduced  from  all  the  cases. 


7.  Important  case  on  par  values. 

8.  Difficulty  of  maintaining  them. 

9.  Sad  effects   of  opposite  course  on  com- 

mercial/air dealing. 

10.  Can  a  corporation  stipulate  to  pay  in- 

terest on  stocks  ? 

11.  Such  a  certificate  of  stock  is  not  thereby 

rendered  inoperative  fin-  legitimate  pur- 
poses. 


§  58.  1.  It  is  well  settled,  that  a  railway,  or  other  joint-stock 
company,  cannot  receive  subscriptions  to  their  stock,  payable  at 
less  sums,  or  in  other  commodities,  than  that  which  is  demanded 
of  other  subscribers.  Hence  subscriptions,  payable  in  store-pay, 
or  otherwise  than  in  money,  will  be  held  a  fraud  upon  the  other 
subscribers,  and  payment  enforced  in  money.^ 

2.  So  too  in  a  case  where  subscriptions  to  stock  of  such  a  com- 

'  Henry  v.  Vermilion  &  Ashland  Railw.  Co.,  17  Ohio,  187.  But  in  one 
case,  Philadelphia  &  West  Chester  RaUw.  v.  Hickman,  28  Penn.  St.  318,  it 
is  said  the  company  may  compromise  subscriptions  for  stock,  which  are  doubtful, 
upon  receiving  part  payment ;  or  may  receive  pajinent  in  labor  or  materials,  or 
in  damages  which  the  company  is  liable  to  pay,  or  in  any  other  liability  of  the 
corporation.  The  certificates  of  stock  in  this  case  were  issued  to  the  contractors, 
in  part  payment  of  work  done  by  them  upon  the  road ;  to  others,  in  part  pay- 
ment for  a  locomotive,  for  sleepers,  for  land-damages,  and  for  cars.  We  do  not 
understand  how  there  can  be  any  valid  objection  to  receiving  payment  for  sub- 
scriptions to  the  capital  stock  of  a  railway  company  in  this  mode,  if  the  shares, 
so  disposed  of,  are  intended  to  be  reckoned  at  their  fair  cash  value,  at  the  time 
of  the  contract  being  entered  into.-  It  is  certain,  contracts  of  this  kind  have  been 
very  generally  recognized  by  the  courts  as  valid,  and  no  fraud  upon  the  other 
subscribers. 

*207 


§  58.  SUBSCRIPTION   UPON  SPECIAL  TERMS.  207 

pany  are,  by  the  agents  of  the  company,  agreed  to  be  received  at 
a  discount,  below  tlie  par  value  of  the  shares,  it  will  be  regarded 
as  a  fraud  upon  the  other  shareholders,  and  not  binding  upon  the 
company  .2 

'  Mann  r.  Cooke,  20  Conn.  178.  In  this  case  the  defendant  subscribed  for 
forty  shares  in  the  capital  stock  of  a  railway  company,  upon  condition  that 
all  future  calls  should  be  paid,  as  required,  or  the  shares  should  become  the  prop- 
erty of  the  company.  He  thereupon  received  certificates  of  ownership  of  the 
forty  shares,  the  special  terms  of  his  subscription  not  being  known  to  the  other 
subscribers. 

Some  time  afterwards,  the  company  being  largely  indebted,  and  insolvent,  and 
the  greater  part  of  the  instalments  on  its  stock  being  unpaid,  the  president  made 
an  arrangement  with  defendant  that  he  should  immediately  pay  the  instalments 
on  twenty  shares  of  his  stock,  in  full,  and  he  was  thereupon  to  be  discharged  from 
all  liability  on  the  other  twenty  shares.  Defendant  complied  with  these  terms, 
and  the  money  paid  went  for  the  benefit  of  the  company. 

The  plaintiff  was  appointed  receiver  of  the  effects  of  the  company,  and  brought 
this  bill  in  equity  to  obtain  pa}'ment  of  the  balance  due  upon  the  other  twenty 
shares,  and  it  was  held :  — 

1.  That  the  subscription  for  the  stock  was  in  legal  effect  the  same  as  an  ordi- 
narj'  subscription  for  stock,  without  condition. 

2.  That  the  arrangement  made  with  the  president  of  the  company  was  void, 
as  a  firaud  upon  stockholders  and  creditors. 

8.  That  the  company,  being  created  for  public  purposes,  could  not  receive 
subscriptions  under  a  private  arrangement  at  less  than  the  par  value  of  the  stock, 
as  this  would  deprive  the  company  of  so  much  of  its  available  means,  and  thus 
operate  as  a  fraud  upon  all  parties  interested. 

But  where  one  paid  for  stock  in  a  railway  company,  under  a  secret  agreement 
with  the  commissioner  of  contracts  that  he  might  receive  land  of  the  company 
at  a  future  day,  and  pay  in  the  stock  certificate,  and  the  company  declined  to 
ratify  the  contract,  it  was  held  the  subscriber  was  released  from  his  portion  of 
the  contract,  and  might  recover  the  money  he  paid  for  the  stock  of  the  com- 
pany. Weeden  r.  I^ke  Erie  &  Mad  River  Railway,  14  Ohio,  563.  But  in  the 
case  of  the  Cincinnati,  Indiana,  &  Chicago  Railw.  r.  Clarkson,  7  Ind.  595,  it 
seems  to  be  considered,  that  the  company  are  bound  by  a  contract  to  compen- 
sate a  solicitor  of  subscriptions  to  the  capital  stock,  payable  in  land,  but  no  ques- 
tion is  made  in  regard  to  the  validity  of  the  subscriptions.  The  solicitors  were 
ordered  by  the  directors  to  accept  such  subscriptions,  and  were  to  have  two  per 
cent  on  all  which  were  accepted  by  the  company,  and  the  contract  was  held 
binding  upon  the  company.  An  agreement  by  a  railway  company,  that  a  sub- 
scriber for  stock  may  pay  the  full  amount,  or  any  part  of  his  subscription,  and 
receive  "  interest  thereon  until  the  road  goes  into  operation,"  does  not  obh'ge 
the  company  to  pay  interest  before  the  road  goes  into  operation.  Waterman  t>. 
Troy  &  Greenfield  Railway,  8  Gray,  433.  See,  also,  Buffalo  &  N.  Y.  City  Railw. 
r.  Dudley,  4  Keman,  336.    Ante,  §  54,  pi.  4. 

An  agreement  to  pay  interest  upon  stock  "  as  soon  as  paid,"  means  fully  paid. 
Miller  v.  Pittsburg  &  Connellsville  Railw.,  40  Penn.  St.  237. 


208  ASSESSMENTS  OR  CALLS.  CH.  IX. 

*  3.  In  a  case  in  Pennsylvania,^  it  is  said  that  subscriptions 
made  to  the  capital  stock  of  a  corporation  before  its  •organ- 
ization, must  always  be  payable  in  money  only.  But  after  the 
organization,  the  company  may  stipulate  with  the  subscriber  for 
payment  in  any  other  mode,  and  can  only  enforce  the  contract 
according  to  its  terms  ;  and  the  act  of  the  president  of  the  com- 
pany in  accepting  conditional  subscriptions  is  binding  upon  the 
company. 

4.  It  is  also  held  in  the  same  case  ,3  that  the  fact  the  subscriber 
makes  part  payment  in  money  before  call,  will  not  estop  him  from 
setting  up  the  special  contract  in  defence  of  an  after  call. 

5.  But  in  a  somewhat  recent  case  in  Alabama,*  it  was  held  that 
a  subscription  to  the  capital  stock  of  a  railway  company,  in  ex- 
press terms  made  payable  in  work,  in  grading  the  line,  to  be 
taken  at  the  public  or  private  letting  and  performed  to  the  accept- 
ance of  the  company's  engineer,  could  not  be  enforced  against 
the  subscriber  until  he  had  had  reasonable  opportunity  to  perform 
the  contract  in  the  manner  specified  by  its  terms.  But  if,  after 
that,  the  defendant  failed  on  his  part  to  perform  it,  he  was  liable 
to  pay  the  amount  in  money.  It  is  here  said  that  the  subscriber 
must  take  notice  of  the  published  lettings  of  the  work. 

6.  The  cases  may  seem  conflicting  upon  this  point ;  but  the 
true  principle  seems  to  be,  that  the  corporation  can  only  enforce 
the  contract  of  subscription  according  to  its  terms,  and  of  this  the 
subscriber  cannot  complain,  or  resist  successfully  the  enforcement  of 
his  subscription  in  that  mode.  But  so  far  as  the  creditors  of  the 
company  are  interested  in  the  matter,  they  may  hold  the  directors 
responsible  for  having  received  the  amount  of  the  capital  stock  in 
money.  And  as  to  the  duty  of  the  directors,  they  cannot,  in  strictness 
and  fairness,  receive  subscriptions  payable  in  any  thing  but  money ; 
nor  can  they  launch  the  company  until  the  whole  capital  stock  is 
subscribed  in  money.  And  any  fraud  or  evasion  in  this  particular 
will  render  the  directors  responsible  for  the  debts  of  the  company, 
as  in  equity  and  fair  dealing  it  should. 

'  Pittsburg  &  Connellsville  Railw.  v.  Stewart,  41  Penn.  St.  54.  The  question 
of  the  presumptive  effect  of  the  conduct  of  a  subscriber  after  the  organization  of 
the  company,  in  attending  and  taking  part  in  the  meetings  of  the  company, 
upon  the  proper  construction  of  any  special  contract  with  the  company,  is  here 
considerably  discussed. 

*  Eppes  ».  M.  G.  &  T.  Railw.  35  Alabama,  33 ;  H.  &  P.  Plank  R.  Co.  c. 
Bryan,  6  Jones  Law,  82. 
*  208,  209 


§  58.  SUBSCRIPTION   UPON  SPECIAL  TERMS.  209 

*  7.  There  is  a  very  sensible  case  ^  in  North  Carolina  bearing 
upon  this  question.  The  legislature  had  authorized  the  town  of 
Newbern  to  take  stock  in  a  company  for  improving  the  navigation 
of  the  river  Neuse,  by  which  the  business  of  the  town  was  ex- 
pected to  be  advanced.  The  town  was,  by  the  act,  authorized  to 
pay  for  the  stock  subscribed  by  them  with  their  bonds,  to  be  is- 
sued and  sold  on  certain  terms,  but  the  amount  of  bonds  issued 
was  restricted  to  the  amount  of  the  stock  subscribed,  and  it  was 
held,  that  as  the  corporation  could  not,  except  by  legislative  sanc- 
tion, accept  any  thing  but  money  in  payment  of  stock,  and  could 
not  issue  stock  at  any  rate  below  par,  the  bonds  could  not  be 
sold  below  par ;  and  that,  to  a  mandamus  to  compel  the  town  to 
pay  for  stock  thus  subscribed,  it  must  be  regarded  as  a  sufficient 
return,  that  the  authorities  of  the  municipality  had  prepared  and 
executed  the  bonds,  and  had  offered  the  same  for  sale  by  public 
advertisement,  and  had  diligently  endeavored  otherwise  to  effect  a 
sale  of  the  same  on  the  terms  prescribed  by  the  statute,  and  had 
not  been  able  to  sell  the  same. 

8.  This  case  unquestionably  puts  these  perplexing  inquiries 
upon  the  true  basis  ;  that  is,  of  fair  dealing,  or  no  dealing  at  all. 
But  we  apprehend  that  railway  contractors  and  builders  would 
regard  it  as  placing  the  matter  in  a  very  impracticable  light. 
And  we  are  not  prepared  to  say  how  far  the  courts  will  feel  justi- 
fied in  departing  from  the  strict  letter  of  the  law  in  these  particu- 
lars, out  of  deference  to  the  speculative  tendencies  of  the  age. 

9.  It  is  certain  that  corporate  stocks,  from  the  first,  are  now 
always  more  or  less  a  matter  of  speculation  in  the  market ;  and 
the  same  is  true  of  all  municipal  bonds  issued  in  aid  of  enter- 
prises affecting  the  interests  of  such  corporations.  And,  in  fact, 
no  one  ever  dreams  of  demanding  strictly  par  values,  in  dealing 
either  with  the  bonds  or  the  stock,  and  we  do  not  suppose  it  can 
now  ever  be  brought  back  to  the  strictly  par  basis.  There  is,  too, 
*  another  great  embarrassment  in  the  way  of  return  to  par  values. 
We  have,  in  fact,  no  par  basis  to  which  to  return.     Until  a  specie 

•  Neose  River  Nav.  Co.  v.  Commissioners  of  Newborn,  7  Jones  Law,  275. 
But  in  Shoemaker  v.  Goshen  Turnpike  Co.,  14  Ohio  N.  S.  569,  from  the  mere 
permission  in  the  statute  to  submit  the  question  of  subscription  to  the  voters  of  a 
township,  the  court  implied  the  power  to  issue  bonds  in  payment  of  such  sub- 
scription in  the  usual  negotiable  form,  and  to  negotiate  them  to  the  company  at 
par,  in  payment  for  the  stock  subscribed. 

W  •  210,  211 


210  ASSESSMENTS   OR   CALLS.  CH.  IX. 

basis  is  reached,  every  thing  is  at  the  mercy  of  speculators  and 
monopolists.  This  is,  no  doubt,  a  very  melancholy  state  of  affairs 
to  have  a  great  commercial  country  in.  But,  so  long  as  commer- 
cial men  endure  it,  and  the  government  submits  to  it,  we  do  not 
see  how  the  courts  can  remedy  it.  But  it  is  certainly  refreshing 
to  see  courts  struggling  to  resist  in  every  way  in  their  power  such 
a  fearful  tide  of  evil.  In  our  humble  judgment,  unless  some 
mode  of  escape  is  found,  speculation  and  monopoly  will  eat  out 
all  honesty  and  fair  dealing  in  all  commercial  transactions,  and 
the  country  will  in  its  commerce  become  a  band  of  legalized 
plunderers  upon  each  other.  The  monopoly  in  flour  and  grain 
and  some  of  the  other  staples  of  the  country  is  scarcely  less  than 
that,  at  the  present  time. 

10.  There  seems  to  be  some  question  whether  a  corporation 
can  stipulate  to  pay  interest  upon  its  stock  certificates  from  the 
first,  without  regard  to  the  earnings  of  the  company.  It  is  cer- 
tain such  a  stipulation  is  at  variance  with  the  ordinary  duties  of 
corporations,  and  will  not  therefore  come  within  the  range  of  the 
implied  authority  of  the  directors  of  the  company.  But  in  one 
case,^  it  seems  to  have  been  considered,  that  the  stockholders 
might  so  ratify  such  a  stipulation  as  to  render  it  binding  upon 
the  company.  But  we  should  very  seriously  question  if  any  such 
authority  is  implied  from  the  general  grant  of  corporate  power  for 
ordinary  business  purposes,  like  that  of  railways.  It  would  seem 
to  require  a  special  delegation  of  authority  by  the  legislature,  and 
in  that  form  it  is  nothing  else  but  a  device  for  borrowing  money,  in 
advance  of  launching  the  corporation  upon  its  legitimate  functions. 

11.  The  case  last  cited  ^  decided  that  such  a  stipulation,  super- 
added to  a  certificate  of  stock,  will  not  defeat  its  original  effect  of 
making  the  holder  a  member  of  the  corporation  ;  and  that  if  cer- 
tificates of  stock  be  so  issued  by  the  directors,  it  will  be  regarded 
as  a  sufficient  ratification  of  them  by  the  corporation  that  *  at  a 
stockholders'  meeting  a  majority  voted  to  pay  such  interest  in 
the  bonds  of  the  company ;  but  the  holders  are  not  thereby  com- 
pellable to  accept  payment  in  that  mode,  unless  they  assented  to 
the  vote. 

*  McLaughlin  v.  Detroit  &  Milw.  Railw.,  8  Mich.  100.     It  seems  scarcely- 
allowable  to  treat  the  vote  of  the  majority  as  a  ratification  of  an  act  of  the 
directors  beneficial  to  the  minority,  and  at  the  same  time  not  binding  upon  the 
minority  except  by  their  own  consent. 
•  212 


§59. 


SUBSCRIPTIONS   OBTAINED   BT  FRAUD. 


211 


SECTION    XIII. 


Equitable  Relief  from  Subscriptions  obtained  by  Fravd. 


Substantial  miarepresentationa  in  obtaining 

subscriptions  will  avoid  them. 
But  far  circumstantial  misconduct  of  the 

directors,  in  the  matter,  they  alone  art 

liable. 


8.  Party  purchasing  must  make  rtaaonabie 
examination  of  papers  referred  to  on  all 
doubtful  /yoints.  But  no  relief  will  be 
granted,  where  there  is  no  fraud,  or  in- 
tentional misrepresentation. 

4.  Directors  cannot  malx  profit  for  themadvea. 


§  59.  1.  The  directors  of  a  railway  company,  who  make  repre- 
sentations on  behalf  of  the  company  to  induce  persons  to  sub- 
scribe for  the  stock,  so  far  represent  the  company  in  the  transac- 
tion, that  if  they  induce  such  subscription  by  a  substantial  fraud, 
tlie  contract  will  be  set  aside  in  a  court  of  equity.^  The  proper 
inquiry  in  such  case  is,  "  Whether  the  prospectus,  so  issued,  con- 
tains such  representations,  or  such  suppression  of  existing  facts,  as, 
if  the  real  truth  had  been  stated,  it  is  reasonable  to  believe  the 
plaintiff  would  not  have  entered  into  the  contract ;  that  is,  that  he 
would  not  have  taken  the  shares  allotted  to  him,  and  those  which 
he  purchased."  ^ 

'  Sir  John  Romilly,  M.  R.,  in  Pulsford  v.  Richards,  17  Beav.  87 ;  s.  c.  19 
Eng.  L.  &  £q.  387,  392.  The  prospectus  issued  in  such  cases  is  to  be  regarded 
as  a  representation.  And  where  one  is  induced  to  take  shares  in  a  joint-stock 
company,  tlirough  the  false  and  fraudulent  representations  of  the  directors,  he  is 
not  liable  to  calls  for  the  purpose  of  paying  the  expenses  of  the  company.  The 
Royal  British  Bank,  Brockwall's  case,  29  Law  Times,  375 ;  8.  c.  4  Drew.  205. 

And  where  one  of  the  directors  of  a  company  put  the  name  of  an  extensive 
stockholder  in  the  company,  who  resided  in  a  foreign  country,  to  a  new  sub- 
scription for  forty  additional  shares,  without  consultation  with  such  person,  upon 
the  belief  that  he  would  ratify  the  act,  and  upon  being  informed  of  such  act,  he 
made  no  objection  for  the  period  of  nearly  seven  years,  during  which  time  the 
company  had  applied  the  dividends  upon  his  stock  in  payment  of  such  subscrip- 
tion, having  no  intimation  of  any  dissent  upon  his  part,  it  was  held  the  subscrip- 
tion thereby  became  binding,  and  that  the  party  could  not  recover  such  dividends 
of  the  company.  Philadelphia,  Wilmington,  &  Baltimore  Railw.  c.  Cowell,  28 
Penn.  St.  329. 

•  Pulsford  r.  Richards,  17  Beav.  87 ;  8.  c.  19  Eng.  L.  &  Eq.  392 ;  Jenninga 
r.  Broughton,  17  Beav.  234 ;  8.  c.  19  Eng.  L.  &  Eq.  420.  One,  to  entitle  him- 
self to  be  relieved  from  his  subscription,  must  show  that  he  acted  upon  the  false 
representations  of  the  directors  in  a  matter  of  fact  material  to  the  value  of  the 
enterprise,  and  not  upon  the  mere  speculation  of  the  directors,  or  upon  his  own 


212  ASSESSMENTS   OB   CALLS.  CH.  IX. 

*  2.  But  the  omission  to  state  in  a  prospectus  the  number  of 
shares  taken  by  the  directors,  or  other  persons,  in  their  interest, 
is  no  such  fraud  as  will  enable  a  subscriber  to  avoid  his  subscrip- 
tion.^  The  fact  that  the  directors  of  the  company  had  entered 
into  a  contract  with  one,  as  general  superintendent  of  construc- 
tion, for  four  per  centum  upon  the  expenditure  ;  and  that  this 
was  an  exorbitant  compensation,  and  was,  in  fact,  intended  to 
compensate  such  person  for  his  services,  in  obtaining  the  charter, 
and  that  this  is  not  stated  in  the  prospectus,  is  no  such  suppres- 
sion as  will  exonerate  subscribers  for  stock.  "  There  was  not  the 
suppression  of  a  fact,  that  affected  the  intrinsic  value  of  the  un- 
dertaking. That  value  depended  upon  the  line  of  the  projected 
railway,  the  population,  the  commercial  wealth,  the  traffic  of  the 
places  through  which  it  passed,  the  difficulties  of  the  construc- 
tion, and  the  cost  of  the  land  required.  Extravagance  in  the 
formation  of  a  line  of  railway  is  a  question  of  liability  of  the  indi- 
vidual directors  to  the  shareholders,  but  not  a  ground  for  annul- 
ling the  contract  between  them."^ 

3.  There  can  be  no  question  one  will  be  affected  with  notice  of 
all  facts  discoverable  by  examination  of  papers  referred  to  in  a 
prospectus  for  the  sale  of  shares,  provided  such  papers  are  accessi- 
ble to  him,  unless  the  facts  stated  in  the  prospectus  are  so  specific 
as  to  divert  interest  from  all  further  inquiry.  It  was  accordingly 
held  that  where  the  contract  of  subscription  bound  the  subscriber 
to  the  terms  of  the  articles  of  association,  an  examination  of  which 
would  have  disclosed  the  facts  upon  which  the  party  claimed  to 
be  relieved  from  his  subscription,  but  that  trusting  to  the  state- 
ments contained  in  the  prospectus,  he  did  not  look  further,  it  was 
held  that  this  neglect  or  omission,  was  no  answer  to  his  claim 
for  relief.^  But  the  party  is  not  entitled  to  relief  by  reason  of  the 
representation  of  any  fact,  made  in  good  faith,  and  upon  reason- 
able grounds  of  probability,  but  which  proves  unfounded  upon 
grounds  equally  unknown  to  both  parties.* 

4.  But  the  learned  judge  here  ^  suggests,  with  great  propriety, 
that  if  the  directors  have  made  contracts,  in  the  course  of  the 
performance  of  their  duties,  from  which  advantage  is  expected  to 

exaggerated  expectations  of  the  prospective  success  and  value  of  the  undertaking. 
See,  also,  upon  this  general  subject,  the  remarks  of  the  Master  of  the  Rolls,  p.  427. 
3  Central  Railw.  v.  Kisch,  Law  Rep.,  2  H.  L.  99. 

*  Kennedy  v.  Panama  Mail  Co.,  Law  Rep.,  2  Q.  B.  580. 

*  213 


§60. 


FORFEITURE   OF  SHARES.  —  RELIEF  IN   EQUITY. 


213 


arise  to  themselves,  or  to  others,  for  their  benefit,  mediately  or 
immediately,  they  may,  in  a  court  of  equity,  be  made  to  stand  in 
the  place  of  trustees  to  the  shareholders.^ 


•SECTION   XIV. 


Forfeiture  of  Shares.  —  Relief  in  Equity. 


1.  Requirements  of  charier  and  statutes  must 

be  strictly  pursued. 

2.  If  not,  equity  will  sH  aside  the  forfeiture. 
8.  Must  credit  the  stock  atfdl  market  value. 


4.  Provisions  of  English  statutes. 

5.  Evidence  must  be  express,  that  all  requisite 

steps  were  pursued. 


§  60.  1.  The  company,  in  enforcing  the  payment  of  calls  by 
forfeiture  of  the  stock,  must  strictly  pursue  the  mode  pointed 
out  in  their  charter  and  the  general  laws  of  the  state.  This  is  a 
rule  of  universal  application  to  the  subject  of  forfeitures,  and  one 
which  the  courts  will  rigidly  enforce,  and  more  especially  where 
the  forfeiture  is  one  of  the  prescribed  remedies,  given  to  the 
party,  and  against  which  equity  does  not  relieve,  when  fairly  exer- 
cised.^ 

2.  But  as  the  company,  in  such  case,  ordinarily  stand  in  both 
relations  of  vendor  and  vendee,  their  conduct,  in  regard  to  fair- 
ness, will  be  rigidly  scrutinized,  and  the  forfeiture  set  aside  in 
courts  of  equity,  upon  evidence  of  slight  departure  from  perfect 
fairness. 

3.  Hence  where  the  company  declared  the  stock  cancelled,  and 
credited  the  value  at  a  less  sum  than  the  actual  market  price  at 
the  time,  but  more  than  it  would  probably  have  sold  for  if  that 
number  of  shares  had  been  thrown  at  once  into  the  market,  the 
court  set  aside  the  forfeiture,  on  the  ground  that  the  company 
were  bound  to  allow  the  highest  market  price  wliich  could  be 

»  Post,  §  179. 

'  Sparks  v.  Liverpool  Water- Works,  13  Vesey,  428 ;  Prendergast  v.  Turton,  1 
Younge  &  Coll.  N.  R.  98,  110-112.  This  case  is  put  mainly  upon  the  ground 
of  delay  and  acquiescence,  but  there  is  little  doubt  it  would  have  been  main- 
tained, upon  the  general  ground  stated  in  the  text.  Sec  Edinburgh,  Leith,  «& 
N.  H.  Railw.  r.  Hibblewhite,  6  M.  &  W.  707 ;  s.  c.  2  Railw.  C.  237. 

But  where  the  deed  of  settlement  of  a  joint-stock  company  provides  for  a  for- 
feiture of  the  shares  without  notice  to  the  subscriber,  the  forfeiture  determines 
the  title  without  notice.  Stewart  v.  Anglo-California  Gold  Mining  Co.,  18  Q. 
B.  736 ;  8.  c.  14  Eng.  L.  &  Eq.  61. 

•214 


214  ASSESSMENTS   OR   CALLS.  CH.   IX. 

obtained,  without  speculating  on  what  might  be  the  effect  of 
throwing  a  large  number  of  shares  into  the  market.^ 

*4.  By  the  English  statute  the  company  are  not  allowed  to 
forfeit  a  larger  number  of  shares  than  will  produce  the  defi- 
ciency required.^  And  upon  payment  to  the  company  of  the 
amount  of  arrears  of  calls,  interest,  and  expenses,  before  such 
forfeited  shares  are  sold  by  them,  the  shares  revert  to  the  former 
owner.3 

5.  The  evidence  of  the  company  having  pursued  the  require- 
ments of  their  act,  in  declaring  the  forfeiture,  must  be  express  and 
not  conjectural.* 

SECTION   XV. 
Bight  of  Corporcdors  and  Others  to  inspect  Books  of  Company. 


1.  May    inspect    and    take    minutes   from 

books. 

2.  Discussion  of  the  extent  to  which  such 

books  are  evidence. 

3.  For  what  purposes  such  books  are  impor- 


4.  This  will  not  embrace  the  books  of  pro- 

ceedings of  directors. 

5.  Party  claiming  to  be  shareholder  may  in- 

spect register. 

6.  Allowed  when  suit  or  proceedings  pending. 


tant  as  evidence.  '•  7.   Party  may  have  aid  in  the  inspection. 

§  60.  a.  1.  It  seems  to  be  conceded  as  a  well-settled  rule  of 
law,  that  the  shareholders  or  corporators  in  a  joint-stock  corpora- 
tion are  entitled,  as  matter  of  right,  to  inspect  and  take  minutes 
from  the  books  of  the  company  at  all  reasonable  times,^  as  they 
are  the  best  evidence  of  the  facts  there  registered,  and  equally  the 
property  of  all  the  proprietors.^  And  the  board  of  directors  of 
the  company  have  no  power  to  exclude  any  member  from  the 
exercise  of  this  right,  even  upon  the  ground  that  he  is  unfriendly 
to  the  interests  of  the  company.^ 

2.  But  it  seems  to  be.  now  settled  that  strangers  cannot  obtain 
the  inspection  of  such  books,  even  by  application  to  the  court, 
their  contents  being  regarded  as  private  memoranda,  in  no  sense 
possessing  any   public   character,*   notwithstanding  a  *  contrary 

»  Stubbs  V.  Lister,  1  Y.  &  CoU.  N.  C.  81. 
'  8  «fe  9  Vict.  ch.  16,  §§  34,  35. 

*  Cockerell  t\  Van  Dieman's  Land  Co.,  18  C.  B.  464 ;  s.  c.  36  Eng.  L.  &  Eq.  405. 
'  Angell  &  Ames  on  Corp.,  §  681. 

*  Owings  V.  Speed,  5  Wheaton,  420,  424. 

3  People  V.  Throop,  12  Wend.  183 ;  Cotheal  v.  Brouer,  1  Seld.  562. 

*  Mayor  of  Southampton  v.  Graves,  8  T.  R.  590. 

*  215,  216 


§  60  a.  BIGHT  TO   INSPECT  BOOKS   OF   COMPANY.  215 

practice  obtained  ^  for  a  time.  It  may  sometimes  liave  been  as- 
sumed, that  the  books  of  private  corporations  possessed  a  higher 
quality  of  evidence  than  is  the  fact.  We  do  not  apprehend  that 
they  are  in  any  sense  indispensable  primary  evidence  of  the  facts 
there  recorded.  As  a  general  thing,  as  to  the  organization  of  the 
company  and  the  choice  of  officers,  all  that  is  requisite  will  be  to 
prove,  de  facto y  the  organization  of  the  company  and  the  exercise 
of  such  offices  by  the  persons  named.  Where  it  is  requisite  that 
an  authority  be  given  by  the  majority  vote  of  the  company,  it  may 
most  conveniently  be  shown  by  the  record,  and  perhaps  in  such  a 
case  the  records  of  the  corporation  may  fairly  be  considered  the 
best  proof  of  the  facts,  if  in  the  power  of  the  party,  as  if  the  cor- 
poration itself  were  called  to  prove  such  vote.  But  any  party  not 
entitled  to  the  custody  of  the  papers  can  only  prove  their  contents, 
unless  the  corporation  is  the  opposing  party,  in  which  case  he 
may  give  notice  to  produce  the  books,  and,  in  default,  may  prove 
the  contents  by  secondary  evidence.  It  has  been  decided  that  the 
clerk  of  the  company  cannot  be  compelled  to  produce  the  books  on 
a  subpoena  duces  tecum.^ 

8.  It  has  been  held  that  a  bank  depositor  has  the  right,  under 
proper  circumstances  and  in  a  reasonable  manner,  to  inspect  the 
books  of  the  bank."  In  practice  it  is  not  one  time  in  ten  where 
the  record  books  of  a  corporation  are  ever  referred  to  in  court, 
unless  to  fix  a  date  or  the  precise  form  of  a  vote  upon  which  a 
power  is  made  to  depend.  But  the  registry  of  shareholders  may 
be  properly  regarded  as  the  primary  evidence  of  membership,  but 
by  no  means  indispensable  or  conclusive.^ 

4.  Where  the  deed  of  settlement  under  which  a  corporation  is 
registered  contained  a  provision  "that  the  books  wherein  the 
proceedings  of  the  company  are  recorded  shall  be  kept  at  the 
principal  office  of  the  company,  and  shall  be  open  to  the  inspection 
of  the  shareholders,"  it  was  held  that  the  clause  gave  *  shareholders 
power  only  to  inspect  the  books  of  minutes  of  proceedings  of 
the  general  meetings,  and  not  of  the  minutes  of  the  proceedings 
of  the  directors.' 

*  Mayor  of  Lynn  v.  Denton,  1  T.  R.  689,  and  cases  cited. 

•  Utica  Bank  r.  Hillard,  5  Cow.  419 ;  Narragansett  Bank  r.  Atlantic  Silk  Co., 
3  Met.  282.  '  Union  Bank  v.  Knapp,  3  Pick.  96. 

»  We  refer  to  what  we  have  before  said  upon  the  subject.  Ante,  §  18,  pi.  10- 
18 ;  §  23,  n.  7.  •  Reg.  v.  Mariquita  Mining  Co.,  1  El.  &  El.  289. 

♦  217 


216  ASSESSMENTS   OR   CALLS.  CH.  IX. 

5.  In  a  somewhat  recent  English  case^^  it  was  held,  that  a 
party  whose  claim  to  be  a  shareholder  is  disputed  by  the  company 
may,  in  an  action  brought  against  the  company,  inspect  any  en- 
tries in  the  register  which  relate  to  the  matter  in  dispute. 

6.  And  in  a  still  more  recent  case,  where  one  of  the  members 
of  the  corporation  was  in  controversy  with  the  company  in  regard 
to  his  right  to  act  as  one  of  the  governing  body,  which  right  de- 
pended upon  an  inspection  of  the  records  of  the  company  in  order 
to  determine  its  usages,  the  court  granted  permission  to  inspect 
the  books.^^  But  it  is  here  said  this  will  not  be  done  unless  there 
is  a  suit  or  some  proceedings  pending. 

7.  And  in  the  inspection  of  all  documents,  by  order  of  the 
Court  of  Chancery,  the  party  in  whose  favor  the  order  is  made 
has  the  right  to  have  such  aid  in  the  inspection,  either  by  coun- 
sel, interpreters,  or  experts,  as  will  make  the  inspection  available 
to  him.^ 

•°  Foster  v.  The  Bank  of  England,  8  Q.  B.  689. 

"  Reg.  V.  Saddlers'  Co.,  10  W.  R.  87.     At  Chambers,  Crompton,  J. 

>*  Swansea  Vale  Railw.  Co.  v.  Budd,  Law  Rep.  2  Eq.  274 ;  s.  c.  12  Jur.  N. 
S.  661.  As  to  the  eflfect  of  the  certificate  of  the  clerk  of  a  corporation  under 
its  seal,  see  New  Orleans  &  O.  R.  Co.  v.  Lea,  12  Louis.  Ann.  388. 


§61. 


OBTAINING   LANDS   BT   EXPBESS   CONSENT. 


217 


♦CHAPTER   X. 


BIGHT  OP  WAY   BY  GRANT. 


SECTION   I. 


Obtaining  Lands  by  express  Consent. 


1.  Leave  granted  by  English  statute. 

2.  Persons  under  disabilittf. 

8.  n.  2.  Money  to  take  the  place  of  the  land. 

4.  Consent  to  pass  railway. 

5.  Duty  of  railway  in  all  cases. 

6.  License  to  build  railway.    Extent  of  du- 

ration. 

7.  Company  bound  by  conditions  in  deal. 

8.  Parol  license  good  till  revoked. 

9.  Sale  of  road  no  abandonment. 

10.  Deed  conveys  incident ;  not  explainable. 

11.  One  cannot  derogate  from  compulsory 

grant. 


12.  But  this  does  not  apply  to  accidental  in- 
cidents. 

18.  Case  in  New  York  Court  of  Appeal* 
somewhat  at  variance  with  the  preced- 
ing cases. 

14.  A  municijxd  corporation  may  be  bound 
by  implied  contract  in  the  grant  of 
land  so  as  not  to  be  at  liberty  to  recede 
from  it. 

16.  A  mere  agreement  to  sell,  although  in 
writing,  will  not  justify  the  company  in 
entering  upon  the  land,  or  defeat  pro- 
ceedings under  the  statute  to  recover 
damages  for  taking  the  land. 


§61.  1.  The  English  statute^  enables  railway  companies  to 
purchase,  by  contract  with  the  owners,  "  all  estates  or  interests 
(in  any  lands)  of  what  kind  soever,"  if  the  same,  or  the  right  of 
way  over  them,  be  requisite  for  their  purposes. 

2.  And  by  another  section  of  the  same  statute  such  companies 
are  empowered  to  purchase  such  lands  of  persons  legally  inca- 
pacitated to  convey  the  title,  under  other  circumstances,  as  guar- 
dians of  infants,  committees  of  lunatics,  trustees  of  charitable  or 
other  uses,  tenants  in  tail,  or  for  life,  married  women,  seized  in 
their  own  right,  or  entitled  to  dower,  executors  or  administrators, 
and  all  parties,  entitled,  for  the  time  being,  to  the  receipt  of  the 
rents  and  profits.^ 

'  8  &  9  Vict.  ch.  18,  §  6. 

»  Hutton  r.  The  London  &  South  W.  Railw.,  7  Hare,  264.  Some  sugges- 
tions are  here  made  by  Vice-Chancellor  Wigram  in  regard  to  the  time  within 
which  it  is  requisite  to  make  compensation  in  the  several  modes  of  taking  lands. 
The  principal  question  decided  is,  that  in  regard  to  lands,  injuriously  affected  by 
railway  works  upon  other  lands,  it  is  not  requisite  to  make  compensation  in  ad- 

•218 


218  RIGHT   OP  WAY  BY   GRANT.  CH.  X. 

*  3.  The  valuation  in  this  latter  class  of  cases  is  to  be  made  by 
disinterested  persons,  and  the  price  paid  into  the  bank  for  the 
benefit  of  the  parties  interested. 

4.  And  where  a  railway  act  provided,  in  terms,  that  nothing 
therein  should  authorize  the  company  to  do  any  damage  or  preju- 
dice to  the  lauds,  estate,  or  property  of  any  corporation  or  person 
whatsoever,  without  the  consent  in  writing  of  the  owner  and  oc- 
cupier, it  was  held  they  could  not  pass  the  line  of  another  railway 
without  their  consent,  although  the  withholding  of  such  consent 
should  frustrate  the  purpose  of  the  grant.^ 

5.  In  this  country  most  of  the  railway  charters  contain  a  power 
to  the  company  to  acquire  lands,  by  agreement  with  the  owner. 
In  such  case  it  has  been  held  the  rights  of  the  company  are  the 
same  as  where  they  take  their  land  under  their  compulsory  powers.* 
And  they  are  bound  to  the  same  care  in  constructing  their  road.* 

6.  And  where  the  railway  have  the  power  to  take  five  rods, 
through  the  whole  course  of  their  line,  and  a  land-owner  deeds 
them  the  full  right  to  locate,  construct,  and  repair,  and  for  ever 
maintain  and  use  their  road  over  his  land,  if,  in  laying  the  drains 
or  ditches  through  the  land,  it  becomes  necessary  to  go  beyond 
the  limits  of  the  five  rods,  in  order  to  guard  against  the  effect  of 
a  stream  to  be  passed,  the  company  may  lawfully  do  so  under  the 
grant.^ 

vance.  But  where  lands  are  purchased  from  persons  under  disability,  the  course 
of  devolution  of  the  property  is  not  thereby  changed,  but  the  money  paid  in 
compensation  is  to  take  the  place  of  the  land,  and  to  be  treated  as  real  estate. 
Midland  Counties  Railw.  v.  Oswin,  1  CoU.  C.  C.  74 ;  s.  c.  3  RaUw.  C.  497 ;  Ex 
parte  Flamank,  1  Simons  (n.  s.)  260 ;  In  re  Homer's  Estate,  6  De  G.  &  S.  483 ; 
8.  c.  13  Eng.  L.  &  Eq.  531 ;  In  re  Stewart's  Estate,  1  Sm.  &  G.  32 ;  s.  c.  13 
Eng.  L.  &  Eq.  533. 

'  Clarence  Railw.  v.  Great  North  of  England  Railw.,  4  Queen's  Bench,  45; 
Gray  v.  The  Liverpool  &  Bury  Railw.,  9  Beav.  391 ;  8.  c.  4  Railw.  C.  235. 

*  Whitcomb  v.  Vermont  Central  Railw.,  25  Vt.  49,  69.  This  right  to  acquire 
lands,  by  contract  with  the  owners,  is,  by  implication,  if  not  expressly,  limited  to 
the  necessities  of  the  company,  we  presume,  the  same  as  taking  lands  in  invitum, 
and  cannot  be  extended  to  any  private  use.  But  if  the  owner  of  the  land  consent 
to  the  use,  the  constitutional  objection  is  removed,  and  the  right  to  hold  the  land 
is  a  question  between  the  company  and  the  public,  probably.  Dunn  v.  City  of 
Charleston,  Harper,  189;  Harding  v.  Goodlet,  8  Yerg.  41;  11  Wend.  149; 
Embury  v.  Conner,  3  Comstock,  516. 

'  Babcock  v.  The  Western  Railw.,  9  Met.  553.     But  a  contract  with  the 
owner  of  land,  for  leave  to  build  the  road  through  his  land,  and  staking  out  the 
track  through  the  land,  is  no  such  occupation  as  will  be  notice  of  the  right  of 
*219 


§  61.         OBTAINING  LANDS  BY  EXPRESS  CONSENT.         219 

*  7.  In  case  of  a  deed  to  a  railway  company  of  land,  on  which 
to  construct  their  road,  the  assent  of  the  company  will  be  pre- 
sumed, and  they  are  bound  by  the  conditions  of  the  grant,  as  that 
the  road  shall  be  so  constructed  as  not  to  interfere  with  buildings 
on  the  land.® 

8.  An  oral  permission  to  take  and  use  land  for  a  railway  is  a 
bar  to  the  recovery  of  damages  for  such  use,  until  the  permission 
is  revoked.^  In  a  very  late  case  before  the  House  of  Lords,®  a 
very  important,  and  as  it  seems  to  us  reasonable  and  just  quali- 
fication is  annexed  to  the  familiar  doctrine  of  implied  assent  to 
the  appropriation  of  land  to  a  permanent  use  by  the  owner  stand- 
ing by  and  not  objecting.  It  is  here  ruled,  "  If  a  stranger  builds 
upon  the  land  of  A.,  supposing  it  to  be  his  own,  and  A.  remains 
wilfully  passive,  equity  will  not  allow  him  to  profit  by  the  mistake ; 
but  if  the  stranger  knows  that  the  land  upon  which  *  he  is  building 
belongs  to  A.,  then  A.  may  assert  his  legal  rights  and  take  the 

the  company  against  a  subsequent  mortgagee.  Merritt  v.  Northern  Railw.,  12 
Barb.  605.  But  the  payment  by  the  company  of  the  price  of  the  land,  and 
changing  their  route  in  faith  of  the  title,  might  give  them  an  equity  superior  to 
that  of  a  subsequent  mortgagee.  lb.  The  deed  of  one  tenant  in  common  is  a 
good  release  of  his  claim  for  damages,  although  it  convey  no  right  as  against  his 
co-tenant.  Draper  ».  Williams,  2  MicL  536.  But  an  agreement  to  sell  land  to 
a  railway  company,  and  a  tender  of  the  price  by  the  company,  creates  no  title  in 
them.     Whitman  v.  Boston  &  Maine  Railw.,  3  Allen,  133. 

•  Rathbone  r.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74.  And  the  rights 
and  duties  of  the  company,  in  such  case,  arc  precisely  the  same  as  if  the  land 
bad  been  condemned,  by  proceedings  in  invitum,  under  the  statute.  Norris 
V.  Vt.  Central  Railw.,  28  Vt.  99.  Such  grant  carries  the  incidents  neces- 
sary to  its  enjoyment.  And  if  it  becomes  necessary,  in  constructing  the  road, 
to  make  a  deep  cut,  that  may  be  done,  and  the  company  are  not  bound  to  pro- 
tect the  banks  of  the  excavation  by  a  wall.  Hortsman  v.  Lexington  &  Gov. 
Railw.,  18  B.  Mon.  218.  See  also  Louisville  &  Nash.  R.  v.  Thompson,  18  B. 
Mon.  736. 

'  Miller  r.  Auburn  &  Syracuse  Railway,  6  Hill,  61.  And  such  license,  when 
executed,  by  the  construction  of  the  work,  is  not  allowed  to  be  revoked.  The 
only  relief  the  party  is  entitled  to  is  compensation  for  his  land.  Water  Power  v. 
Chambers,  1  Stock.  Ch.  471.  And  it  was  held  in  a  somewhat  recent  English 
case,  Corby  v.  Hill,  4  C.  B.  N.  S.  656 ;  s.  c.  81  Law  Times,  181,  that  where 
the  owner  of  land  had  given  oral  permission  to  one  for  a  private  way,  he 
could  not  obstruct,  or  give  permission  to  others  to  obstruct.'such  way;  and 
that  where  a  third  person,  by  ]>ermission  of  the  land-owner,  placed  building 
materials  in  the  way,  whereby  an  injury  accrued  to  the  person  having  the  way, 
he  might  sue  for  such  injury. 

»  Ramsden  r.  Dyson,  Law  Rep.,  1  Ho.  Lda.  123 ;  s.  c.  12  Jar.  N.  S.  606. 

•  220,  221 


220  RIGHT   OF  WAY   BY   GEAKT.  CH.  X. 

benefit  of  the  expenditure.  And  a  tenant  building  upon  his  land- 
lord's land,  in  the  absence  of  such  special  circumstances,  acquires 
no  right  against  him  at  the  expiration  of  the  tenancy.  But  a 
mere  license  to  build  works  connected  with  a  railway,  the  dam- 
ages to  be  settled  with  a  person  named,  or  "  on  equitable  terms 
hereafter,"  does  not  amount  to  any  definite  agreement.* 

9.  Where  land  is  conveyed,  for  the  use  of  a  railway,  upon  con- 
dition that  it  shall  revert  to  the  owner  upon  the  abandonment  of 
the  road,  and  the  road  was  sold,  under  a  mortgage,  to  the  state, 
and  by  the  state  and  by  new  companies  chartered  for  that  purpose 
completed,  it  was  held,  that  the  grantor  was  not  entitled  to  hold 
the  land.io 

10.  Where  land  was  conveyed  to  a  railway  company,  for  the 
purpose  of  constructing  their  road,  on  which  was  a  tenement,  and 
to  this  water  was  conveyed  by  an  aqueduct  from  another  portion 
of  the  land  of  the  defendant,  and  the  price  of  the  land  was  fixed 
by  the  commissioners,  the  defendant  at  the  time  claiming  the  right 
to  withdraw  the  water,  and  this  not  being  objected  to  by  the 
president  and  engineer  of  the  company,  who  were  present  at  the 

•  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58.  But  a  writing 
whereby  the  owner  of  land  along  the  line  of  a  contemplated  gravel  road  gave 
the  road  company  the  right  to  enter  upon  his  land  anywhere  within  a  mile  of  the 
contemplated  road  and  dig  and  remove  gravel,  as  much  as  they  might  require, 
was  held  not  a  mere  license,  but  a  grant  irrecoverabltf.  Bracken  ».  Kushrille 
Gravel  Road  Co.,  27  Ind.  346. 

'*'  Harrison  r.  Lexington  &  Ohio  Railw.,  9  B.  Mon.  470.  So,  too,  if  land  is 
conveyed  on  condition  that  an  embankment  (water-tight)  over  a  brook  crossing 
the  land  shall  be  erected  by  the  grantors,  and  that  the  embankment,  or  dam, 
with  the  floodgates  or  sluices  therein,  might  be  used  for  hydraulic  purposes  by 
the  grantors,  their  heirs,  and  assigns,  the  grantees  not  to  be  liable  to  the  grantors 
for  any  damage  they  might  sustain  by  a  break  in  such  dam,  unless  the  same 
should  happen  through  the  gross  neglect  or  wilful  misfeasance  of  the  grantees, 
but  that  the  grantees  should  repair  the  dam  forthwith,  it  was  held  to  be  a  con- 
dition subsequent,  the  failure  to  perform  which  would  give  the  grantors,  or  their 
heirs,  a  right  of  re-entry  at  their  election.  But  it  was  further  said,  that  the 
conveyance  of  the  estate  by  the  grantees  defeated  the  condition,  and  that  the 
assignee  had  no  remedy  upon  it.  Underbill  c.  Saratoga  &  Wash.  Railw.,  20 
Barb.  455.  And  such  conditions  may  be  waived  by  the  partj-  in  whose  favor 
they  are  made,  as  in  a  grant  of  land  for  a  railway  track,  the  road  to  be  com- 
pleted by  a  day  named,  or  the  deed  to  be  void,  which  was  not  done ;  but  the 
grantor  continued  to  treat  the  company  as  having  the  right  to  use  the  land  for 
the  purposes  of  the  grant.  And  it  was  held  a  waiver  of  the  condition.  Ludlow  v. 
New  York  &  Harlem  Railw.,  12  Barb.  440. 


§  61.  OBTAINING  LANDS  BY   EXPRESS   CONSENT.  221 

time,  it  was  held,  that  the  deed  containing  *  no  exception  in  regard 
to  the  water,  the  company  acquired  the  right  to  its  use,  in  the 
manner  it  had  been  before  used,  and  the  defendant  was  liable  to 
an  action  for  diverting  it,"  and  the  intention  of  the  parties  could 
not  be  determined  by  extraneous  evidence. 

11.  So,  also,  the  principle  that  a  grantor,  knowing  the  purpose 
for  which  his  deed  is  accepted,  cannot  derogate  from  his  own 
grant,  applies  to  the  case  of  a  compulsory  conveyance,  under  legis- 
lative authority,  and  the  act  is  sufficient  notice  to  the  grantor  of 
the  purposes  of  the  conveyance.  But  this  rule  will  ijot  apply  to 
any  accidental  state  of  facts,  existing  at  the  time  of  the  grant,  as 
the  support  resulting  from  an  excavation  being  filled  with  water  at 
the  time,  so  as  to  entitle  the  grantee  to  insist  upon  its  continuance. 

12.  And  accordingly,  where  a  railway  took  the  land  above  a 
mine  for  the  support  of  the  abutments  of  a  bridge,  the  mine  hav- 
ing been  abandoned  for  forty  years  and  full  of  water,  it  was  held 
they  could  not  insist  upon  having  the  water  remain  in  the  pit,  as 
a  support  to  the  earth,  but  that  they  were  entitled  to  be  protected 
from  damage  likely  to  result  from  working  the  mine.^ 

13.  If  a  railway  have  power  to  take  land  by  consent  of  the 
owner,  an  oral  consent  is  sufficient.^^  And  if  the  company  take 
laud  and  put  it  to  their  use  without  the  consent  of  the  owner,  or 
any  other  proceeding  under  their  powers,  it  is  a  trespass,  but  can 
only  be  sued  by  the  person  then  owning  the  land,  and  not  by  his 
grantee.^  But  this  case  was  reversed  upon  error,  and  it  was  de- 
cided, somewhat  at  variance  with  the  present  English  rule,  that 
such  a  license,  coupled  with  an  interest,  was  still  revocable  at  the 
option  of  the  licensor.  But  the  final  conclusion  of  the  court  of 
error,  that  "  consent,"  in  such  an  act,  meant  the  efiectual  consent 
of  the  law  expressed  with  due  formality,  seems  altogether  the 
more  reasonable  ground  upon  which  to  place  the  case. 

14.  The  New  York  Court  of  Appeals^*  held  that  municipal 
*  corporations,  as  to  their  rights  and  powers  over  lands  owned  by 
the  corporation,  were  to  be  viewed  the  same  as  any  other  owner 

"  Vermont  Central  Railw.  p.  Hills,  23  Vt.  681. 

"  North  Eastern  Railw.  Co.  r.  Elliott,  1  Johns.  &  H.  146 ;  8.  c.  6  Jur.  N.  S. 
817. 

"  Central  Railw.  Co.  p.  Hitfield,  5  Dutcher,  206;  8.  c.  in  error,  id.  671. 

'*  Mayor,  &c.,  of  the  City  of  New  York  v.  The  Second  Avenue  Railw.,  82 
N.  Y.  261 ;  8.  c.  34  Barb.  41,  where  the  case  was  similarly  ruled. 

♦  222,  228 


222  BIGHT  OP  WAY  BY  GRANT.  CH.  X. 

of  land,  and  that  their  acts  and  resolutions  in  regard  to  the  use  of 
such  land  by  others  were  not  to  be  regarded  as  either  of  a  legisla- 
lative  or  governmental  character ;  and  that  although  such  corpo- 
rations have  no  power  as  a  party  to  make  contracts  which  shall 
control  or  embarrass  their  legislative  powers  and  duties,  yet,  as 
these  legislative  duties,  or  powers,  only  extend  to  regulations  of 
police  and  internal  government,  and  not  to  the  mere  imposition  of 
a  sum  of  money  for  revenue  purposes,  consequently  an  ordinance 
imposing  a  license  duty  upon  city  cars,  for  revenue  purposes  only, 
is  not  an  ordinance  for  police  and  internal  government,  and  the 
imposition  of  an  annual  tax  upon  a  city  passenger  railway,  in 
derogation  of  its  rights,  as  defined  by  a  specific  agreement  be- 
tween the  city  and  the  railway  company,  for  purpose  of  revenue 
merely,  is  unlawful  and  void.^^ 

15.  Proof  of  a  written  agreement  to  sell  land  to  a  railway  com- 
pany, at  a  given  price,  within  a  limited  time,  and  for  tender  of  the 
same  within  the  time,  and  a  refusal  to  accept  the  same,  will  not 
justify  the  company  in  locating  their  road  upon  the  land,  or  defeat 
proceedings  under  the  statute  to  recover  damages  for  such  lo- 
cation.^^ 

'*  The  terms  of  this  contract  appear  more  fully  where  the  case  is  rejKtrted  in 
Barbour.  It  prescribed  the  regulations  to  which  the  company  should  be  liable, 
requiring  no  further  license,  and  reserving  no  power  to  require  one  thereafter. 
This  was  held  to  preclude  the  city  authority  from  making  the  imposition  de- 
manded. It  would  seem,  the  case  might  have  been  decided,  in  conformity  with 
the  dissenting  opinion  of  Mr.  Justice  Ingrahani,  in  the  court  below,  without  any 
great  violence  to  principle.  See  also  Branson  v.  Philadelphia,  47  Penn.  St.  329 ; 
Veazie  v.  Mayo,  45  Me.  560;  People  v.  New  York  &  Harlem  R.  Co.,  45 
Barb.  73;  Vilas  v.  Mil.  &  Miss.  R.  Co.,  15  Wise.  233.  A  grant  of  land  to 
the  use  of  a  highway  seems  to  be  regarded  as  giving  the  municipal  authorities 
the  same  rights  in  regard  to  its  use  as  where  the  land  is  condemned  for  that  pur- 
pose.    Murphy  v.  The  City  of  Chicago,  29  HI.  279. 

The  grant  to  a  railway  company  of  a  right  to  build  a  tunnel  will  not  preclude 
the  owner  of  the  land  from  digging  minerals  imder  the  tunnel,  in  conformity 
with  the  general  railway  acts,  London  &  N.  W.  Railw.  Co.  v.  Ackroyd,  8  Jur. 
N.  S.  911. 

"  Whitman  ».  Boston  &  Maine  Railw.,  3  Allen,  133.  This  written  contract 
might  be  evidence  of  the  value  of  the  land,  or  an  admission  by  the  owner,  and 
88  such  might  probably  be  used  in  the  proceedings  under  the  statute  for  esti- 
mating damages. 


§62. 


SPECIFIC   PEBFOBMANCE  IN  EQUITY. 


228 


♦SECTION  <II. 


Specific  Performance  in  Equity. 


1.  Contracts  before  and  ajler  date  of  charier. 

2.  Contracts  where  all  the  termt  not  defined. 
8.   Contracts  for  land  umpire  to  fix  price. 
4.    Where  mandamus  also  lies. 

6.    Contracts  not  signed  by  company. 

6.  Where  terms  are  uncertain. 

7.  Contracts  giving  the  company  an  option. 

8.  Contracts  not  understood  by  both  parties. 

9.  Order  in  regard  to  construction  of  high- 

uxtys  may  be  enforced  at  the  suit  of  the 
municipality. 


10.  Hie  courts  sometimes  decline  to  decree 

specific  performance  on  the  ground  of 
public  conveniemx. 

11.  No  decree  of  specific  performance  when 

contract  vague  and  uncertain,  and  for 
other  reasons. 

12.  Courts  of  equity  will  not  in  the  final 

decree  make  the  price  a  charge  on  the 
land,  unless  so  declared  cU  first. 


§  62.  1.  Tliere  can  be  no  doubt  courts  of  equity  will  decree 
specific  performance  of  contracts  for  land,  made  by  consent  of  the 
owners,  as  well  after  the  act  of  parliament  as  before.^ 

2.  K  the  agreement  contains  provisions  for  farm-crossings, 
fences,  and  cattle-guards,  either  express  or  implied,  the  master 
will  be  directed  to  make  the  proper  inquiry,  and  any  decree  for 
specific  performance  should  provide  minutely  for  all  such  inci- 
dents.^ But,  upon  general  principles,  if  the  agreement  provide 
that  the  price  of  land  is  to  be  fixed  by  an  arbitrator  or  umpire,  it 
has  generally  been  held  that  a  suit  for  specific  performance  is  not 
maintainable.^ 

3.  But  if  the  arbitrator  have  acted  and  fixed  the  price,*  and  by 
parity  of  reason,  if  the  umpire  is  named,  and  ready  to  act,  there 
being  no  power  of  revocation,  a  court  of  equity  may  decree  spe- 
cific performance.  Hence  in  the  case  above,^  the  Vice-Chancellor 
held,  that,  as  the  contract  was  to  take  the  land  on  the  terms  pre- 
scribed in  the  act  of  parliament,  the  court  had  the  means  of 

>  Ante,  §  18,  et  seq. ;  Walker  r.  The  Eastern  Counties  Railw.  Co.,  6  Railw. 
C.  469;  8.  c.  6  Hare,  694. 

*  Sanderson  v.  Cockermouth  &  Washington  Railw.  Co.,  19  Law  Jour.  Ch. 
603;  11  Beavan,  497. 

'  Milnes  v.  Gerry,  14  Yesey,  400.  But  in  this  case  the  umpire  was  not 
agreed  upon,  and  the  court  held  they  could  not  appoint  one.  But  the  Master  of 
the  llolls  held  that  an  agreement  to  sell,  at  a  fair  valuation,  may  be  executed. 
See  Tillet  v.  Charing  Cross  Company,  26  Beav.  419 ;  8.  C.  6  Jur.  N.  S.  994. 

*  Brown  v.  Bellows,  4  Pick.  179. 

•224 


224  RIGHT   OP   WAY   BY  GRANT.  CH.  X. 

applying  those  terms,  so  as  to  get  at  the  price,  and  might  there- 
*  fore  require  the  party  to  put  them  in  motion,  and  then,  in  its  dis- 
cretion, decree  specific  performance. 

4.  And  the  consideration,  that  possibly  the  party  might  proceed 
by  mandamus,  will  not  deprive  him  of  this  remedy  in  equity,  un- 
less the  act  specially  provides  the  remedy  by  mandamus.^ 

6.  But  if  the  company  take  a  bond  of  a  land-owner,  to  convey 
so  much  land  as  they  shall  require,  and  subsequently  appropriate 
the  land,  but  decline  accepting  a  deed  and  paying  the  price,  equity 
will  not  decree  specific  performance  of  the  contract,  the  bond  not 
being  signed  by  the  company.^  But  in  such  a  case  specific 
performance  will  be  decreed  against  the  party  signing  the  bond 
upon  refusalJ 

6.  A  contract  to  sell  a  railway  company  "  the  land  they  take " 
from  a  specified  lot  of  land,  at  twenty  cents  a  foot,  "  for  each  and 
every  foot  so  taken  by  said  company,"  imports  a  taking  by  the 
company,  under  their  compulsory  powers,  and  will  not  be  specifi- 
cally enforced  until  so  taken  by  the  company.  And  if  the  terms 
of  a  contract  are  doubtful,  a  court  of  equity  will  not  decree  spe- 
cific performance.^ 

7.  Where  one  contracts  with  a  railway  company,  under  seal,  to 
permit  them  to  construct  their  road  over  his  land,  in  either  one 
of  two  routes,  and  to  convey  the  land  after  the  road  shall  be 
definitively  located,  with  a  condition  that  the  deed  shall  be  void, 
when  the  road  shall  cease,  or  be  discontinued,  if  the  company 
take  the  laud  and  build  their  road  upon  it,  specific  performance 
will  be  decreed,  although  the  company  did  not  expressly  bind 
themselves  to  take  the  land,  or  pay  for  it.  And  where  the  com- 
pany had  been  in  the  use  of  the  land  for  their  road  three  or  *  four 
years,  it  was  held  no  such  unreasonable  delay  as  to  bar  the  relief 

*  Hodges  on  Railways,  189. 

'  Jacobs  V.  Peterborough  &  Shirley  Railw.,  8  Cush.  223. 

'  Parker  ».  Perkins,  8  Cush,  318. 

8  Boston  &  Maine  Railw.  v.  Babcock,  3  Cush.  228 ;  s.  c.  1  Am.  Railw.  C.  661. 
But  under  a  contract  with  a  railway  company,  giving  them  all  the  land  they 
desired,  not  exceeding  four  poles  in  width,  upon  which  to  construct  their  road, 
"provided  said  road  shall  not  run  farther  north  of  my  southwest  corner  than  ten 
feet,  and  not  farther  south  of  my  northeast  corner  than  140  feet,"  it  was  held 
the  company  had  a  right  to  66  feet  through  the  whole  land,  and  were  only  re- 
stricted in  relation  to  the  distance  the  road  went  from  the  corners  named. 
Lexington  &  Ohio  Railw.  v.  Ormsby,  7  Dana,  276. 
*  226,  226 


§  62.  SPECIFIC  PERFORMANCE  IN   EQUITY.  225 

sought.  The  party  cannot  excuse  himself  hy  showing,  that,  from 
his  own  notions,  or  the  representations  of  the  company,  or  of 
third  persons,  he  was  induced  to  believe  that  a  different  route 
would  have  been  adopted  by  the  company,  or  that  there  was  an 
inadequacy  in  the  price  stipulated,  unless  it  be  so  gross  as  to 
amount  to  presumptive  evidence  of  fraud  or  mistake.^ 

8.  But  it  is  a  good  defence,  in  such  case,  that  the  party  was 
led  into  a  mistake,  without  any  gross  laches  on  his  part,  by  an 
uncertainty  or  obscurity  in  the  descriptive  part  of  the  agreement, 
so  that  it  applied  to  a  different  subject-matter  from  that  which  he 
understood  at  the  time,  or  that  the  bargain  was  hard,  unequal, 
or  oppressive,  and  would  operate  in  a  manner  diflfercnt  from  tbat 
which  was  in  the  contemplation  of  the  parties  when  it  was  exe- 
cuted. But  in  such  case  the  burden  of  proof  is  upon  the  defend- 
ant, to  show  mistake  or  misrepresentation.^ 

In  a  recent  English  case  ^°  before  the  Court  of  Chancery  Appeal, 
after  elaborate  argument,  the  Lord  Justice  Knight  Bruce,  an 
equity  judge  of  the  most  extended  learning  and  experience,  thus 
states  the  rule  upon  this  point.  This  court  will  not  enforce  spe- 
cific performance  of  a  contract,  where  the  defendant  proves  that 
he  understood  it  in  a  sense  different  from  the  plaintiff,  even  al- 
though the  plaintifTs  construction  may  be  the  plain  meaning  of 
the  contract. 

9.  Where  the  county  commissioners  made  order  in  regard  to 
the  mode  of  construction  of  a  railway,  in  crossing  a  highway,  it 
was  held,  that  the  mayor  and  aldermen  of  a  city,  or  the  select- 
men of  a  town,  are  the  only  proper  parties  to  a  bill  for  specific 
performance,  and  that  the  land-owners,  over  which  the  railway 
•passes,   are    not   to   be  joined   in    the   bill."     But  where  the 

•  Western  Railw.  v.  Babcock,  6  Met.  846 ;  8.  c.  1  Am.  Railw.  C.  365.  The 
delivery  of  a  deed  to  the  agent  of  a  corporation,  in  such  case,  is  sufficient.  And 
where  .the  party,  in  disregard  of  his  contract,  had  obtained  an  assessment  of 
damages  for  the  land,  under  the  statute,  his  liability  upon  the  contract  is,  to  the 
difference  between  the  apprisal  and  the  stipulated  price  in  the  contract. 

Unreasonable  delay  is  ordinarily  a  bar  to  specific  performance  in  a  court  of 
equity.  Guest  v.  Homfray,  6  Vesey,  818 ;  Hertford  v.  Boore,  Aston  v.  Same,  6 
Vesey,  719 ;  Watson  r.  Reid,  1  Russ.  &  My.  236  ;  2  Story's  Eq.  Jur.  §§  771,  777, 
and  cases  cited. 

10  Wycombe  Railw.  Co.  t.  Donnington  Hospital,  Law  Rep.  1  Ch.  268 ;  8.  c. 
12  Jur.  N.  S.  347. 

*'  Brainard  v.  Conn.  River  Railw.,  7  Cush.  606.  In  Roxbury  v.  Boston  & 
15  •  227 


226  BIGHT  OP  WAY  BY  GBANT.  CH.  X. 

order  required  the  highway  to  be  so  raised  as  to  pass  over  the 
railway,  at  a  place  named,  but  without  defining  the  height  to  which 
*  it  should  be  raised,  the  grade,  the  nature  of  the  structure,  or  the 
time  within  which  it  should  be  made,  it  was  held  too  indefinite  to 
justify  a  decree  for  specific  performance.^ 

Prov.  Railw.,  6  Cush.  424,  it  was  also  held  the  commissioners  must  make  such 
order  specific,  and  not  in  the  alternative,  and  that  laches,  in  regard  to  such  order, 
will  not  defeat  the  claim  for  a  decree  for  specific  performance,  where  public 
security  is  essentially  concerned. 

And  courts  of  equity  have  held  a  parol  license  to  erect  public  works,  and  the 
works  erected  in  faith  of  it,  irrevocable,  and  the  company  entitled  to  hold  the 
land  upon  making  compensation,  and  have  virtually  decreed  specific  perform- 
ance. Water  Power  Co.  r.  Chamber,  1  Stockton,  Ch.  471.  See  also  Hall  r. 
Chaffee,  13  Vt.  150 ;  Boston  &  Maine  Railw.  v.  Bartlett,  3  Cush.  224.  But  it 
was  held  that  an  action  for  the  price  of  land  will  not  lie  upon  a  parol  contract  of 
sale,  where  there  had  been  no  conveyance  of  the  land,  although  the  company  had 
taken  possession  and  paid  part  of  the  price.  Rej-nolds  v.  Dunkirk  &  State  Line 
Railw.,  17  Barb.  612.  This  is  undoubtedly  according  to  the  generally  recognized 
rule  upon  the  subject,  in  those  states  where  the  Statute  of  Frauds  is  in  force. 

In  the  recent  case  of  Laird  f.  Birkenhead  Railw.,  6  Jur.  N.  S.  140 ;  s.  c.  1 
Johns.  Eng.  Ch.  500,  the  question  of  an  estoppel  in  fact  becoming  so  fixed  upon 
a  railway  company  by  acquiescence  as  to  be  enforced  by  a  court  of  equity,  is 
largely  discussed  by  Vice  Chancellor  Wood,  and  placed  upon  higher  and  sounder 
grounds,  as  it  seems  to  us,  than  in  most  of  the  earlier  cases.  The  leading  facts 
were,  that  the  plaintiff,  by  agreement  with  the  company,  without  writing,  had 
built  a  tunnel  through  their  land,  in  order  to  facilitate  access  to  his  own  business, 
and  had  laid  rails  upon  the  work,  and  had  been  in  the  use  of  the  same  for  two 
years,  paying  tolls  as  agreed  between  the  parties.  The  company  now  claimed 
that  the  plaintiff  was  merely  a  tenant  at  will,  and  subject  to  their  absolute  dicta- 
tion as  to  the  right  to  use  and  the  terms  upon  which  he  could  use  the  works,  and 
gave  notice  in  writing  of  the  immediate  and  absolute  termination  of  the  contract, 
and  in  pursuance  of  such  notice  removed  the  rails  and  permanently  erected  a 
board  across  the  passage. 

The  learned  judge  overruled  the  demurrer,  and  said  "it  must  be  inferred,  from 
the  nature  of  the  transaction,  and  afler  all  this  expense,  that  it  was  not  to  be 
determined  by  three  months'  notice.  .  .  .  The  necessary  inference  is,  that  it  is 
to  be  the  right  of  user,  as  long  as  the  plaintiff  is  the  owner  of  the  yard,  .and  it 
would  be  a  most  unreasonable  proposition  to  say  that  the  company  should  have 
the  power  of  determining  it  at  three  months'  notice.  ...  I  consider  that  a 
contract  had  been  made  out  upon  the  face  of  the  bill,"  and  it  was  further  con- 
sidered, that,  aside  from  the  actual  use,  a  court  of  equity  would  have  decreed 
specific  performance  upon  reasonable  terms ;  but  after  the  use  for  a  considerable 
term  on  the  basis  of  an  unsigned  memorandum,  the  court  will  regard  that  as  evi- 
dence of  the  ultimate  agreement  of  the  parties.  S.  P.  Mold  v.  Wheatcroft,  27 
Beav.  510. 

"  City  of  Roxbury  v.  Boston  &  Providence  Railw.,  2  Gray,  460. 
*228 


§  62.  SPECIFIC  PERFORMANCE  IN   EQUITY.  227 

10.  The  Master  of  the  Rolls,  Lord  Romillt/,  in  Raphael  v.  The 
Thames  Valley  Railway ,^^  held,  that  in  deciding  whether  specific 
performance  should  be  enforced  against  a  railway  company,  the 
court  must  have  regard  to  the  interests  of  the  public,  and  there- 
fore, where  a  bridge  had  not  been  constructed  in  conformity  with 
an  agreement  with  a  land-owner,  but  the  injury  to  the  land-owner 
was  small,  and  the  railway  had  since  been  opened  for  traffic,  and 
the  relief,  if  granted,  would  have  necessitated  an  interference  with 
the  traffic,  the  court  refused  to  compel  specific  performance. 

11.  And  it  has  been  very  recently  declared  by  the  English 
courts  of  equity,  that  where  a  contract  is  vague  and  so  uncertain 
that  no  compensation  could  be  awarded,  a  decree  for  specific  per- 
formance could  not  be  made."  So  also  the  court  will  not  interfere 
after  considerable  lapse  of  time  and  when  the  company  are  not 
possessed  of  funds  for  completing  the  purchase. ^^  So  refusal  to 
decree  specific  performance  may  be  based  upon  the  public  safety 
and  convenience.^® 

12.  And  a  Court  of  Equity  will  not  make  the  amount  to  be 
paid  for  land  a  charge  upon  the  land,  under  leave  to  apply  for 
further  directions,  where  it  was  not  made  so  by  the  original 
decree.^*" 

"  Law  Rep.  2  Eq.  37 ;  8.  c.  12  Jur.  N.  S.  656. 

"  TiUett  r.  Charing  Cross  Co.,  26  Beav.  419 ;  8.  c.  6  Jur.  N.  S.  994. 

'*  Prj-se  c.  Combrian  Railw.,  Law  Rep.  2  Eq.  444. 

'•  Raphael  v.  Thames  Valley  Railw.,  id.  37. 

"  Attorney-General  c.  S.  &  S.  Railw.,  Law  Rep.  1  Eq.  686. 


228 


EBIINENT  DOMAIN. 


CH.  XI. 


♦CHAPTER    XI. 


EMINENT  DOMAIN. 


SECTION  I. 


General  Principles, 


1.  Definition  of  the  right. 

2.  Intercommunication. 

3.  Necessary  attribute  of  sovereignty. 

4.  Antiquity  of  its  recognition. 

5.  Limitations  upon  its  exercise. 


6.  Resides  principally  in  the  states. 

7.  Duty  of  making  compensation. 

8.  Navigable  waters. 

9.  10,  11.   Its  exercise  in  rivers,  above  tide- 

water. 


§  63.  1.  This  title  is  very  little  found  in  the  English  books, 
and  scarcely  in  the  English  dictionaries.  But  with  us,  it  has 
been  adopted  from  the  writers  on  national  and  civil  law,  upon  the 
continent  of  Europe,^  and  is  perhaps  better  understood  than 
almost  any  other  form  of  expression,  for  the  same  idea.  It  is  de- 
fined to  be  that  dominium  eminens,  or  superior  right,  which  of 
necessity  resides  in  the  sovereign  power,  in  all  governments,  to 
apply  private  property  to  public  use,  in  those  great  public  emer- 
gencies which  can  reasonably  be  met  in  no  other  way. 

2.  It  is  a  distinct  right  from  that  of  public  domain,  which  is 
the^  land  belonging  to  the  sovereign.  This  is  a  superior  right 
which  the  sovereign  possesses  in  all  property  of  the  citizen  or  sub- 
ject, whether  real  or  personal,  and  whether  the  title  were 
originally  derived  from  the  sovereign  or  not.  One  of  the  chief 
occasions  for  the  exercise  of  this  right  is,  in  creating  the  necessary 
facilities  for  intercommunication,  which  in  this  country  is  now 
very  generally  known  by  the  name  of  Internal  Improvement. 
This  extends  to  the  construction  of  highways  (of  which  turnpikes 
and  railways  are,  in  some  respects,  but  different  modes  of  con- 
struction and  maintenance),  canals,  ferries,  wharves,  basins,  and 
some  others.^ 

'  Vattel,  B.  1,  ch.  20,  §  244 ;  Code  Napoleon,  B.  2,  tit.  2,  545 ;  1  Black. 
Coram.  139  ;  Gardner  v.  Newburgh,  2  Johns.  Ch.  162 ;  2  Dallas,  310. 

'  3  Kent,  Coram.  339  et  seq.  and  notes ;  Beekman  v.  Saratoga  &  Sch.  Railw., 
3  Paige,  45,  73 ;  12  Pick.  467  ;  23  id.  327  ;  3  Selden,  314.  This  right,  as  some 
*  229 


§  63.  GENERAL  PRINCIPLES.  229 

*  3.  This  is  a  right  in  the  sovereignty,  which  seems  indispen- 
sable to  the  maintenance  of  civil  government,  and  which  seems  to 

of  the  above  cases  show,  extends  to  numerous  matters  not  named  in  the  text. 
It  would  be  out  of  place  here  to  enter  into  the  discussion  of  the  general  subject. 
The  indispensable  prerequisites  to  the  exercise  of  the  right  will  appear,  as  far  as 
they  apply  to  the  subject  of  this  work,  in  the  following  sections. 

That  railways  are  but  improved  highways,  and  are  of  such  public  use  as  to 
justify  the  exercise  of  the  right  of  eminent  domain,  by  the  sovereign,  in  their 
construction,  is  now  almost  universally  conceded.  Williams  r.  N.  Y.  Central 
Railw.,  18  Barb.  222,  246 ;  State  r.  Rives,  5  Ired.  297 ;  Northern  Railw.  r. 
Concord  &  .Claremont  Railw.,  7  Foster,  183 ;  Bloodgood  c.  M.  «&  H.  Railw.,  18 
Wend.  9 ;  8.  c.  14  Wendell,  51 ;  1  Bald.  C.  C.  Reports,  205.  See  also  3  Paige, 
73 ;  3  Seld.  314.  A  freight  company  has  been  regarded  as  not  of  such  public 
interest  as  to  justify  taking  land  by  the  right  of  eminent  domain.  This  was  for 
loading  and  unloading  freight.  Memphis  Freight  Co.  v.  Memphis,  4  Cold.  419. 
But  this  case  is  perhaps  questionable.  A  railway  for  the  purpose  of  transporting 
freight  is  as  much  a  public  use  as  if  it  embraced  passenger  transportation.  And 
a  freight  company  of  more  limited  extent  might  be  said  to  be  in  aid  of  the  com- 
pany carrying  greater  distances.  The  marginal  railways  in  cities  for  the  purpose 
of  connecting  the  different  lines  of  traffic,  are  as  much  public  companies  and 
entitled  to  exercise  the  sovereign  right  of  eminent  domain,  as  any  other  railway. 
But  no  railway  company  can  take  land  for  other  than  public  uses,  as  for  the 
deposit  of  dirt,  &c.,  not  connected  with  the  efficient  use  of  their  right  of  way. 
Lance's  Appeal,  55  Penn.  St.  16. 

It  seems  to  be  well  settled,  that  the  legislature  have  no  power  to  take  the 
property  of  the  citizens  for  any  but  a  public  use ;  but  that  a  railway  is  such  use. 
Bradley  ».  N.  Y.  &  N.  H.  Railw.,  21  Conn.  294;  Symonds  v.  The  City  of 
Cincinnati,  14  Ohio,  147 ;  Embury  r.  Conner,  3  Comst.  511. 

But  this  is  a  power  essentially  different  from  that  of  taxation,  in  regard  to 
which  there  is  no  constitutional  restriction,  and  no  guaranty  for  its  just  exercise, 
except  in  the  discretion  of  the  legislature.  The  People  p.  Mayor  of  Brookljii, 
4  Comst.  419 ;  Cincinnati,  W.  &  Z.  Railw.  r.  Clinton  Co.  Coram.  1  Ohio,  N.  S. 
77. 

The  legislature  must  decide,  in  the  first  instance,  when  the  right  of  eminent 
domain  may  be  exercised,  but  this  is  subject  to  the  revision  of  the  courts,  so  far 
as  the  uses  to  which  the  property  is  applied,  are  concerned.     2  Kent,  Comm.  340. 

But  as  to  the  particular  instance,  the  decision  of  the  legislature,  and  of  the 
commissioners  appointed  to  exercise  the  power,  is  ordinarily  final  and  not  revis- 
able  in  the  courts  of  law.  Varrick  r.  Smith,  5  Paige,  137  ;  Armington  p.  Bar- 
net,  16  Vt.  745. 

And  the  legislature  may  restrain  the  owners  of  property,  in  its  use,  when  in 
their  opinion  the  public  good  requires  it,  without  compensation,  as  this  is  not  the 
exercise  of  the  right  of  eminent  domain.  Commonwealth  v.  Tewksbur}*,  11 
Met.  55 ;  Cdates  v.  Mayor  of  New  York,  7  Cowen,  585.  But  see  Clark  p. 
Mayor  of  Syracuse,  13  Barb.  32. 

The  following  case  recognizes  the  general  right  stated  in  the  text.  Donnaher 
V.  The  State,  8  Sm.  &  M.  649. 

•230 


280  EMINENT   DOMAIN.  CH.  XI. 

be  rather  a  necessary  attribute  of  the  sovereign  power  in  a  state, 
than  any  reserved  right  in  the  grant  of  property  to  the  subject  or 
citizen. 

4.  It  seems  to  have  been  accurately  defined,  and  distinctly 
recognized,  in  the  Roman  empire,  in  the  days  of  Augustus,  and  his 
inmiediate  successors,  although  from  considerations  of  policy  *and 
personal  influence  and  esteem,  they  did  not  always  choose  to  exer- 
cise the  right,  to  demolish  the  dwellings  of  the  inhabitants,  either 
in  the  construction  of  public  roads  or  aqueducts,  or  ornamental 
columns,  but  to  purchase  the  right  of  way. 

5.  But  in  the  states  of  Europe  and  in  the  written  constitution 
of  the  United  States,  and  in  those  of  most  of  the  American  states, 
an  express  limitation  of  the  exercise  of  the  right  makes  it  depend- 
ent upon  compensation  to  the  owner .^  But  this  provision  in  the 
United  States  constitution  is  intended  only  as  a  limitation  upon 
the  exercise  of  that  power,  by  the  government  of  the  United 
States.^ 

6.  And  it  would  seem,  that  notwithstanding  this  right  of  sov- 
ereignty may  reside  in  the  United  States,  as  the  paramount  sov- 
ereign, so  far  as  the  territories  are  concerned,  in  reference  to 
internal  communication,  by  highways  and  railways,  and  notwith- 
standing the  ownership  of  the  soil  of  a  portion  of  the  lauds,  by  the 
United  States,  in  many  of  the  states,  as  well  as  territories,  still, 
when  any  of  the  territories  are  admitted  into  the  Union,  as  inde- 
pendent states,  the  general  rights  of  eminent  domain  are  vested 
exclusively  in  the  state  sovereignty.* 

7.  The  duty  to  make  compensation  for  property,  taken  for  pub- 
lic use,  is  regarded,  by  the  most  enlightened  jurists,  as  founded  in 
the  fundamental  principles  of  natural  right  and  justice,  and  as 

'  Barron  r.  Baltimore,  7  Peters,  243 ;  Fox  r.  The  State  of  Ohio,  5  How. 
410,  434,  435. 

*  Pollard  V.  Hagan,  3  How.  (U.  S.)  212 ;  Goodtitle  v.  Kibbe,  9  How.  471 ;  Doe 
c.  Beebe,  13  How.  25 ;  United  States  v.  Railw.  Bridge  Co.,  6  McLean,  517.  In 
the  Court  of  Claims  recently,  in  the  case  of  The  Illinois  Central  Railw.  t>. 
United  States,  20  Law  Rep.  630,  it  was  held,  that  the  abandonment  of  a  military 
reserve,  which  had  become  useless  for  military  purposes,  causes  it  to  fall  back 
into  the  general  mass  of  public  lands,  and  that  a  state,  by  virtue  of  its  right  of 
eminent  domain,  may  authorize  the  construction  of  railways  through  land  owned 
but  not  occupied  by  the  United  States.  And  the  United  States  being  in  pos- 
session of  land  owned  by  the  plaintiffs,  and  which  was  necessary  to  carry  out  the 
objects  of  their  charter,  it  was  held,  that  a  pa^nnent  made  by  the  plaintiffs,  to 
obtain  possession  thereof,  was  made  under  duress,  and  might  be  recovered  back. 
•231 


§  63.  GENERAL  PRINCIPLES.  231 

lying  at  the  basis  of  all  wiso  and  just  government,  independent  of 
all  written  constitutions  or  positive  law.* 

*8.  But  the  public  have  a  right,  by  the  legislature,  through  the 
proper  functionaries,  to  regulate  the  use  of  navigable  waters,  and 
the  erection  of  a  bridge,  with  or  without  a  draw,  by  the  authority 
of  the  legislature,  is  the  regulation  of  a  public  right,  and  not  the 
deprivation  of  a  private  right,  which  can  be  made  the  ground  of  an 
action,  even  where  private  loss  is  thereby  produced,  nor  is  it  the 
taking  of  private  property  for  public  use  which  will  entitle  the 
owner  to  compensation.^ 

9.  And  where  a  ford-way  was  destroyed,  by  the  erection  of  a 
dam  across  a  river,  in  the  construction  of  a  canal,  or  other  public 
work,  under  legislative  grant,  the  river  being  a  public  highway, 
although  not  strictly  navigable,  in  the  common-law  sense,  (which 
only  included  such  rivers,  as  were  affected  by  tide-water,)  it  was 
held  the  owner  of  the  ford-way  could  recover  no  compensation 
from  the  state,  or  their  grantees,  the  act  being  but  a  reasonable 
exercise  of  the  right  to  improve  the  navigation  of  the  stream,  as  a 
public  highway."    " 

10.  Neither  can  the  owner  of  a  fishery,  which  sustains  damage 
or  destruction  by  the  building  of  a  dam  to  improve  the  navigation 
of  a  river  above  tide-water,  under  grant  from  the  state,  sustain  an 
action  against  the  grantees.*  So  also  in  regard  to  the  loss  of  the 
use  of  a  spring,  by  deepening  the  channel  of  such  a  stream,  by 
legislative  grant* 

11.  Nor  is  the  owner  of  a  dam,  erected  by  legislative  grant 
upon  a  navigable  river,  and  which  was  afterwards  cut  off  by  a 
canal,  granted  by  the  same  authority,  entitled  to  recover  dam- 
ages.*® 

'  Spencer,  Ch.  J.,  in  Bradshaw  v.  Rogers,  20  Johns.  103;  2  Kent,  Comm. 
889,  and  note  and  cases  cited,  from  the  leading  continental  jurists. 

'  Davidson  r.  Boston  &  Maine  Railw.,  3  Cush.  91 ;  Gould  v.  Hudson  River 
Railw.,  12  Barb.  616;  s.  c.  2  Selden,  622.  Nor  have  the  state  any  such  right 
in  flats,  where  the  tide  ebbs  and  flows,  as  to  require  a  railway  company  to  pay 
them  damages  for  the  right  of  passage.  Walker  r.  Boston  &  Maine  Railw.  3 
Cush.  1 ;  8.  c.  1  Am.  Railw.  C.  462. 

'  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346. 

'  Shrunk  v.  Schuylkill  Navigation  Co.,  14  Serg.  &  Rawle,  71. 

•  Commonwealth  c.  Ritcher,  1  Penn.  467. 

"  Susquehannah  Canal  Co.  r.  Wright,  9  Watts  &  Serg.  9 ;  MonongaheU 
Navigation  Co.  v.  Coons,  6  id.  101. 

*  232 


232 


EMINENT   DOMAIN. 


CH.  XI. 


♦SECTION  II. 


Taking  Lands  in  invitum. 


1.  Legislative  grant  requisite. 

2.  Compensation  must  be  made. 

3.  Consequential  damages. 

4.  Extent  of  such  liability. 

6.  These  grants  strictly  construed. 

6.  Limitation  of  the  power  to  take  lands. 


7.  Interference  of  courts  of  equity. 

8.  Rule  of  construction  in  American  courts. 

9.  Strict,  but  reasonable  construction. 

10.  Rights  acquired  by  company. 

11.  Limited  by  the  grant. 

12.  Late  decision  of  the  House  of  Lords. 


§  64.  1.  In  England  railways  can  take  lands  by  compulsion, 
only  in  conformity  to  the  terms  of  their  charters,  and  the  general 
laws  defining  their  powers.^  And  in  this  country  a  railway  com- 
pany or  other  corporation  must  show,  not  only  the  express  warrant 
of  the  legislature  ^  (which  it  must  for  all  its  acts)  for  taking  the 
land  of  others  for  their  own  uses,  but  also  that  the  legislature,  in 
giving  such  warrant,  conformed  to  the  constitutions  of  the  states, 
in  most  of  which  it  is  expressly  required  that  compensation  should 
be  made  for  all  lands  taken.  And  upon  this  subject,  the  circum- 
spection of  the  English  courts,  in  requiring  damage  and  loss  to  the 
land-owners  to  be  fairly  met,  is  shown  very  fully  by  the  language 
of  Lord  Denman,  Ch.  J.,  in  The  Queen  v.  The  Eastern  Counties 
Railway  .3 

'  Taylor  v.  Clemson,  2  Q.  B.  978 ;  s.  c.  3  Railw.  C.  65.  Tindal,  Ch.  J.,  here 
said,  "  This  authority  to  take  land,  if  exercised  adversely,  and  not  by  consent,  is 
undoubtedly  an  authority  to  be  carried  into  effect,  by  means  unknown  to  the  com- 
mon law."  And  in  Barnard  v.  Wallis,  2  Railw.  C.  177,  the  Master  of  the  Rolls 
declares,  that  aside  from  the  provisions  of  the  act  of  parliament,  the  owner  of 
one  rod  of  land  may  insist  upon  his  own  terms,  to  the  utter  overthrow  of  the  most 
important  public  work.  ' '  The  price  of  his  consent  must  be  determined  by  him-, 
self."  All  kinds  of  property  and  estate  are  subject  to  this  right  of  eminent 
domain,  and  a  dwelling-house,  so  long  regarded  as  the  inviolable  sanctuary  of 
the  owner  or  occupant,  forms  no  exception.  Wells  ».  Som.  &  Ken.  Railw.  Co., 
47  Me.  345. 

*  Hickok  V.  Plattsburgh,  15  Barb.  435 ;  4  Barb.  127  ;  Halstead  v.  Mayor,  &c. 
of  New  York,  3  Comst.  430 ;  Hart  v.  Mayor  of  Albany,  9  Wend.  571,  588 ;  2 
Denio,  110 ;  Dunham  v.  Trustees  of  Rochester,  5  Cowen,  462. 

'  2  Q.  B.  347  ;  8.  c.  2  Railw.  C.  736,  752.  It  has  been  repeatedly  decided  that 
the  corporate  authorities  of  a  city  have  no  power  to  confer  upon  any  person,  natu- 
ral or  corporate,  the  franchise  of  operating  a  railway.  Such  a  grant  for  an  in- 
definite period  is  void  as  a  perpetuity.  Such  powers  are  hqld  by  the  city  for  the 
public  benefit,  and  cannot  be  abrogated  or  delegated.  And  such  a  grant  is  not  an 
♦  233 


§  64  TAKING  LANDS  IN  INVITUM.  288 

•  2.  "  We  think  it  not  unfit  to  premise,  that  when  such  large 
powers  are  intrusted  to  a  company  to  carry  their  works  into  exe- 
cution, without  the  consent  of  the  owners  and  occupiers  of  the 
land,  it  is  reasonable  and  just  that  any  injury  to  property  which 
can  be  shown  to  arise  from  the  prosecution  of  those  works  should 
be  fairly  compensated  for  to  the  party  sustaining  it." 

3.  In  the  English  statute,  too,  railway  companies  are  made  lia- 
ble to  pay  damage  to  the  owner  of  all  lands  "  injuriously  affected  " 
by  any  of  their  works.  Such  a  provision  does  not  exist  in  many 
of  the  American  states,  and  consequently  no  liability  is  imposed 
for  merely  consequential  damages  to  lands,  no  part  of  which  is 
taken.* 

4.  Under  the  English  statute,  giving  damage  where  lands  are 
"  injuriously  affected,"  railways  have  been  held  liable  for  all 
acts,  which,  if  done  without  legislative  grant,  would  constitute 
a  nuisance,  and  by  which  a  particular  party  incurs  special  dam- 
age.^ 

5.  These  grants,  being  in  derogation  of  commo!i  right,  are  to 
receive  a  reasonably  strict  and  guarded  construction.^  The  *  Mas- 
act  of  municipal  legislation  merely,  but  a  contact  which,  if  valid,  it  could  not 
revoke  or  limit,  and  which  is  consequently  void  as  a  perpetuity.  Milhau  r. 
Sharp,  27  N.  Y.  611 ;  post,  §  76,  p.  547. 

•  Hatch  r.  Vermont  Central  Railw.,  25  Vt.  49 ;  Philadelphia  &  Trenton  Railw., 
6  "VMiart.  25;  Monongahela  Nav.  Co.  v.  Coon,  6  Watts  &  Serg.  101.  See  also 
Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  467;  Evansville  &  Crawfordsville 
Railw.  r.  Dick,  id.  433. 

»  Queen  c.  Eastern  Co.'s  Railw.,  2  Q.  B.  847  ;  Glover  v.  North  Staffordshire 
Railw.,  16  Q.  B.  912;  8.  c.  6  Eng.  L.  &  Eq.  335. 

•  Gray  r.  Liverpool  &  Bury  Railw.,  9  Beav.  391 ;  s.  c.  4  Railw.  C.  235-240. 
Hence  under  a  general  grant  of  power  to  take  land  for  the  track  of  a  railway, 
with  sidings  and  branches  to  the  towns  along  the  line,  the  company  have  no  power 
to  take  land  for  a  temporary'  track  during  the  period  of  constructing  the  main  line. 
Currier  r.  Marietta  &  Cin.  Railw.  Co.,  11  Ohio  N.  S.  228.  Nor  can  a  railway  com- 
pany, under  their  general  powers,  take  lands  at  a  distance  from  their  line  not  in- 
tended to  be  used  in  its  construction.  Waldo  ».  Chicago,  St.  Paul  &  Fond  du 
Lac  Railw.  Co.,  14  Wis.  575.  Nor  can  a  railway  company  take  land  compulsorily 
for  the  purpose  of  erecting  a  manufactorj'  of  railway  cars,  or  dwellings  to  be 
rented  to  the  employes  of  the  company.  But  they  may  take  land  for  the  purpose 
of  storing  wood  and  lumber  used  on  the  road,  or  brought  there  for  transportation 
upon  it.  And  when  land  is  taken  for  a  legitimate  purpose,  the  decision  of  the 
locating  officers  of  the  company  is  conclusive  as  to  the  extent  required  for  that 
purpose,  unless  the  quantity  so  taken  is  clearly  beyond  any  just  necessity. 
Vt.  &  Canada  R.  v.  Vt.  Cent.  R.,  34  Vt.  2. 

•  234,  235 


234  EMINENT  DOMAIN.  CH.  XI. 

ter  of  the  Rolls,  in  this  last  case,  says,  "  In  these  cases  it  is 
always  to  be  borne  in  mind,  that  the  acts  of  parliament  are  acts  of 
sovereign  and  imperial  power,  operating  in  the  most  harsh  shape 
in  which  that  power  can  be  applied  in  civil  matters,  —  solicited  as 
they  are,  by  individuals,  for  the  purpose  of  private  speculation  and 
individual  benefit."  And  in  another  case ''  the  rule  of  construc- 
tion is  thus  laid  down  :  — 

6.  "  These  powers  extend  no  further  than  expressly  stated  in 
the  act,  except  where  they  are  necessarily  and  properly  acquired 
for  the  purposes  which  the  act  has  sanctioned."  This  last  cate- 
gory, as  here  observed,  is  often  a  most  perplexing  one,  in  regard 
to  its  true  extent  and  just  limits.  And  doubtful  grants  are  to  be 
construed  most  favorably  towards  those  who  seek  to  defend  their 
property  from  invasion.^  And  a  railway,  having  an  option  between 
different  routes,  can  only  take  lands  on  that  route  which  they 
ultimately  adopt ;  and  if  they  contract  for  land  upon  the  other 
routes,  cannot  be  compelled  to  take  it.^  The  time  for  exercise  of 
these  compulsory  powers,  by  the  English  statutes,  is  limited  to 
three  years,^^  except  for  improvements  *  necessary  for  the  public 
safety,  in  conformity  with  the  certificate  of  the  Board  of  Trade. 

It  was  decided  by  the  House  of  Lords,  reversing  the  judgment 
of  the  Lords  Justices,  but  affirming  that  of  the  Vice-Chancellor, 
that  where  the  legislature  authorizes  a  railway  company  to  take, 
for  their  purposes,  any  lands  described  in  their  act,  it  constitutes 

'  Colman  r.  The  Eastern  Counties  RaUw.,  10  Beav.  1 ;  s.  c.  4  Railw.  C.  513, 
524 ;  State  v.  B.  &  O.  Railw.,  6  Gill,  363 ;  Simpson  r.  So.  Staff.  Waterworks  Co., 
11  Jur.  N.  S.  453.  And  in  a  recent  case  in  Kentucky,  the  rule  is  thus  stated :  The 
rules  of  construction  which  apply  to  charters  delegating  sovereign  power  to  cor- 
porations do  not  depend  upon  the  question  whether  the  corporation  is  a  private  or 
a  public  one,  but  on  the  character  of  the  powers  conferred,  and  the  purposes  of  the 
organization.  The  power  of  a  railway,  or  other  private  corporation,  to  take 
private  property  for  its  use,  being  a  delegation  of  sovereign  power,  must  be  con- 
strued as  it  would  be  if  delegated  to  a  mimicipal  corporation.  And  the  powers 
of  private  and  public  corporations,  with  respect  to  their  property,  are  governed 
by  the  same  principles,  and,  in  the  absence  of  express  provisions  of  law,  depend 
upon  the  purposes  for  which  the  corporation  was  formed.  Bardstown  &  Lou. 
E.  R.  Co.  V.  Metcalfe,  4  Met.  (Ky.)  199. 

8  Sparrow  r.  Oxford,  W.  and  W.  Railw.,  9  Hare,  436 ;  s.  c.  12  Eng.  L.  &  Eq. 
249 ;  Shelford  on  Railways,  233. 

'  Tomlinson  v.  Man.  &  Birm.  Railw.,  2  Railw.  C.  104;  Webb  v.  Man.  & 
Leeds  Railw.,  1  Railw.  C.  576. 

•°  Such  a  limitation  is  held  obligatory  wherever  it  exists.     Peavey  v.  Calais 
Railw.,  30  Maine,  498;  s.  c.  1  Am.  Railw.  C.  147. 
•286 


§  64.  TAKING  LANDS  IN  INVITUM.  236 

them  the  sole  judges  as  to  whether  they  will  or  will  not  take  those 
lands,  provided  that  they  take  them  bona  fide  with  the  purpose  of 
using  them  for  the  purposes  authorized  by  the  legislature,  and  not 
for  any  sinister  or  collateral  purpose."  And  that  a  court  of  equity 
cannot  interfere,  even  upon  the  decision  of  an  engineer,  to  curtail 
the  power  of  the  company,  in  regard  to  the  quantity  of  land  sought 
to  be  obtained  by  it,  so  long  as  it  acts  in  good  faith.  But  in  a 
later  case  ^  it  was  said  tliat  the  House  of  Lords,  in  the  case  of 
Stockton  &  Co.  V.  Brown,  did  not  decide  that  the  company,  by  its 
engineer,  had  an  unlimited  discretion  to  take  any  land  which  the 
engineer  would  make  affidavit  the  company  required  for  use  in  the 
construction  of  their  works,  without  stating  what  works ;  but  that 
it  must  appear  to  what  use  tliey  proposed  to  put  the  lands,  and  if 
that  came  fairly  within  the  range  of  their  powers,  the  company 
could  not  be  controlled  in  the  bona  fide  exercise  of  its  discretion  as 
to  the  mode  of  constructing  their  works,  within  the  powers  con- 
fided to  them  by  the  legislature.  The  company  will  not  be  re- 
strained from  taking  land  for  the  purpose  of  depositing  waste 
upon,  although  not  confident  of  requiring  it  for  any  other  purpose 
connected  with  the  construction.^* 

7.  As  a  general  rule  in  the  English  courts  of  equity,  if  the 
construction  of  a  railway  charter  be  doubtful,  they  will  remit  the 
party  to  a  court  of  law  to  settle  the  right,  in  the  mean  time  so 
exercising  the  power  of  granting  temporary  injunctions  as  will  best 
conduce  to  the  preservation  of  the  ultimate  interests  of  all  parties." 

*  8.  Similar  rules  of  construction  have  prevailed  in  the  courts 
of  this  country.  The  language  of  Ch.  J.  Taney ^  in  the  leading 
case  upon  this  subject,  in  the  national  tribunal  of  last  resort,  is 
very  explicit.  "  It  would  present  a  singular  spectacle,  if,  while  the 
courts  of  England  are  restraining  within  the  strictest  limits  the 
spirit  of  monopoly  and  exclusive  privilege  in  nature  of  monopoly, 
and  confining  corporations  to  the  privileges  plainly  given  to  them 
in  their  charter,  the  courts  of  this  country  should  be  found  enlarg- 

"  Stockton  &  Darlington  RaUw.  Co.  r.  Brown,  6  Jur.  N.  S.  1168 ;  8.  c.  9  Ho. 
L.  C.  246 ;  North  Missouri  Railw.  r.  Lackland,  25  Mo.  615 ;  Same  c.  Gott,  id.  640. 

»»  Flower  r.  London  Br.  &  S.  Coast  Railw.  Co.,  2  Drew.  &  Sm.  330;  8.  c. 
11  Jur.  N.  S.  406. 

'3  Lund  V.  Midland  Railw.  Co.,  34  L.  J.  Ch.  276. 

"  Clarence  Railw.  v.  Great  North  of  England,  C.  &  H.  J.  Railw.,  2  Railw. 
C.  763.  But  the  practice  of  courts  of  equity  in  this  respect,  is  by  no  means  uni- 
form.    See  post,  chap,  xzriii. 

•287 


236  EMINENT  DOMAIN.  CH.  XI. 

ing  these  privileges  by  implication."  ^^  And  in  commenting  upon 
the  former  decisions  of  that  court,  upon  this  subject,  the  same 
learned  judge  here  says, "  the  principle  is  recognized,  that  in  grants 
by  the  public  nothing  passes  by  implication."  ^^  And  other  cases 
are  here  referred  to  in  the  same  court,  in  support  of  the  same  view.^'^ 
9.  But  it  is  not  to  be  inferred  that  the  courts  in  this  country,  or 
in  England,  intend  to  disregard  the  general  scope  and  purpose  of 
the  grant,  or  reasonable  implications,  resulting  from  attending 
circumstances.  But  if  doubts  still  remain,  they  are  to  be  solved 
against  the  powers  claimed.^^ 

*  10.  But  where  the  right  of  the  company  to  appropriate  the 
land  is  perfected  under  the  statute,  they  may  enter  upon  it  with- 
out any  process  for  that  purpose,  and-the  resistance  of  the  owner 
is  unlawful,  and  he  may  be  restrained  by  injunction,  but  that  is 
unnecessary.     The  statute  is  a  warrant  to  the  company.^^ 

11.  But  a  grant  to  a  railway  to  carry  passengers  and  merchan- 
dise from  A.  to  M.,  does  not  authorize  them  to  transport  merchan- 
dise from  their  depot  in  the  city  of  M.  about  the  city,  or  to  other 
points,  for  the  accommodation  of  customers.^ 

12.  There   has   been   considerable   discussion   in    the    English 
"  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 

"  U.  S.  p.  Arredondo,  6  Pet.  691,  738. 

"  Jackson  v.  Lamphire,  3  Pet.-  280 ;  Beaty  v.  Knowler,  4  Pet.  152,  168 ; 
Providence  Bank  v.  Billings  &  Pittman,  4  Pet.  514.  And  that  court  not  only 
adheres  to  the  same  view  still,  but  may  have  carried  it,  in  some  instances,  to  the 
extreme  of  excluding  all  implied  powers.  See  also  upon  this  subject.  Common- 
wealth V.  Erie  &  Northeast  Railw.,  27  Penn.  St.  339 ;  and  Bradley  v.  New  York 
&  New  Haven  Railw.,  21  Conn.  294. 

»8  Perrine  ».  Ches.  &  Del.  Canal  Co.,  9  How.  172;  Enfield  Toll  Bridge  ». 
BLartford  &  N.  H.  Railw.,  17  Conn.  454;  Springfield  r.  Conn.  River  Railw.,  4 
Cush.  63 ;  30  Maine,  498 ;  9  Met.  553 ;  1  Zab.  442 ;  3  Zab.  510 ;  21  Penn.  St.  9 ; 
16  m.  20. 

The  following  cases  will  be  found  to  confirm  the  general  views  of  the  text : 
Tuckahoe  Canal  Co.  v.  Tuckahoe  Railw.,  11  Leigh,  42;  GreenleaTs  Cruise, 
Vol.  2,  67,  68;  Thompson  v.  N.  Y.  &  H.  Railw.,  3  Sandf.  Ch.  625;  Oswego 
Falls  Bridge  Co.  c.  Fish,  1  Barb.  Ch.  547 ;  Moorhead  v.  Little  Miami  Railw.,  17 
Ohio,  340;  Stormfeltz  v.  Manor  Turnpike  Co.,  13  Penn.  St.  555;  Toledo  Bank 
V.  Bond,  1  Ohio  N.  S.  636 ;  Cincinnati  Coll.  v.  Stat«,  17  Ohio,  110 ;  Cam.  & 
Amboy  R.  r.  Briggs,  2  Zab.  623;  Carr  r.  Georgia  Railw.  &  Banking  Co.,  1 
Kelly,  524 ;  7  Ga.  221 ;  New  London  v.  Brainard,  22  Conn.  552 ;  Bradley  u. 
N.  Y.  &  N.  H.  Railw.,  21  Conn.  294;  9  Ga.  475;  Barrett  v.  Stockton  &  D. 
RaUw.,  2  M.  &  G.  134. 

"  Niagara  Falls  &  Lake  Ontario  Railw.  v.  Hotchkiss,  16  Barb.  270. 

*  Macon  r.  Macon  &  Western  Railw.,  7  Ga.  221. 

*238 


§65. 


CONDITIONS   PRECEDENT. 


237 


courts,  within  the  last  few  years,  in  regard  to  many  recent  statutes 
there,  for  the  improvement  of  markets  and  streets  in  the  metropo- 
lis or  districts  adjoining,  through  the  agency  of  the  municipal  cor- 
porations. And  while  the  courts  there,  and  especially  the  House 
of  Lords,  in  a  very  recent  case,^^  adhere  strenuously  to  the  former 
rule,  in  regard  to  private  corporations,  that  they  can  only  take 
lands  compulsorily,  for  the  needful  purposes  of  the  works  which 
they  are  authorized  by  the  legislature  to  construct ;  on  the  other  hand, 
they  hold  that  it  is  competent  and  proper  under  parliamentary  pow- 
ers granted  for  that  purpose,  to  allow  municipal  corporations  to 
reimburse  the  expense  of  any  improvements  which  they  are  author- 
ized to  carry  forward,  in  their  streets  and  squares  or  markets, 
by  taking  the  lands  adjoining  such  improvements,  at  the  price  of 
their  value  before  such  improvements,  and  selling  them  at  the  ad- 
vanced prices  caused  by  such  improvements.  And  it  was  held 
that  the  municipality  having,  before  the  act  passed,  contracted  for 
the  sale  of  such  of  the  lands  so  to  be  taken  as  they  should  not  re- 
quire for  the  purpose  of  the  public  improvement,  did  not  disqualify 
them  from  exercising  the  discretion  reposed  in  them  by  the  act,  as 
to  how  much  land  they  would  take.  This  rule  of  law  in  regard  to 
the  proper  mode  of  reimbursing  the  expense  of  great  public  improve- 
ments is  not  very  different  from  that  which  has  been  extensively  in 
use  in  America  under  the  name  of  betterment  acts,  whereby  the  ex- 
pense is  assessed  upon  the  adjoining  *  property-owners,  upon  some 
scheme  of  equalization,  presumptively  apportioning  the  loss  and 
benefit  equitably .^^ 

SECTION  III. 
Conditions  Precedent. 


1.  Conditions  precedent  mustbe  complied  with. 

2.  Thcd  must  be  alleged  in  petition. 
8.    When  title  vests  in  company. 

4.   Filing  the  location  in  the  land  office  is  no- 
tice to  subsequeiti  purchasers. 
6.   After  damages  are  assessed  and  confirmed 


by  the  court  the  owner  is  entitled  to  exe- 
cution. 

6.  If  the  company  use  the  land. 

7.  Subscriptions  payable  in  land  without  com- 

pensation, a  court  of  equity  will  enforce 
payment. 


§  65.  1.  It  has  been  held  that  a  railway  company  must  comply 
with  all  the  conditions  in  its  charter,  or  the  general  laws  of  the 

*'  Galloway  v.  The  Mayor  &  Commonalty  of  London  and  the  Metropolitan 
Railw.  Co.,  et  vice  versa,  12  Jur.  N.  S.  747.  (1866.)  8.  c.  Law  Rep.  1  H. 
L.  84.  "  Pott,  §  229,  and  casea  cited  in  n.  22,  23. 

•239 


238  EMINENT   DOMAIN.  CH.  XI. 

state,  requisite  to  enable  it  to  go  forward  in  its  construction,  before 
it  acquires  any  right  to  take  land  by  compulsion.  In  England  one 
of  these  conditions  in  the  general  law  is,  that  stock,  to  the  amount 
of  the  estimated  cost  of  the  entire  work,  shall  be  subscribed.  And 
where  the  charter  or  the  general  laws  of  the  state  gave  the  right 
to  take  land  for  the  road-way  only  upon  the  legislature  having 
approved  of  the  route  and  termini  of  the  line,  it  was  held  the  com- 
pany could  not  proceed  to  condemn  lands  for  that  purpose  until 
this  approval  was  made.^ 

2.  And  where  the  act  of  the  legislature,  under  which  a  railway 
was  empowered  to  take  lands,  required  the  company  to  apply  to 
the  owner,  and  endeavor  to  agree  with  him  as  to  the  compensa- 
tion, unless  the  owner  be  absent  or  legally  incapacitated,  they  have 
no  right  to  petition  for  viewers  until  that  is  done.^  The  petition 
should  allege  the  fact  that  they  cannot  agree  with  the  owner.^ 

*  The  right  of  such  companies  to  take  land  is  held  in  some  states 
to  depend  upon  the  legal  sufficiency  and  validity  of  the  certificate 
and  public  record  of  organization  ;  and  it  was  held  the  company 
must  show  these  prerequisites  to  be  strictly  in  conformity  with  the 
requirements  of  the  law.^ 

3.  Where  the  charter  of  a  railway  company  provides  that  the 
title  of  land  condemned  for  the  use  of  the  company  shall  vest  in 
the  company,  upon  the  payment  of  the  amount  of  the  valuation, 
no  title  vests  until  such  payment.*    In  a  late  case,^  the  law  upon 

*  Gillinwater  v.  The  Mississippi  &  A.  Railw.  Co.,  13  HI.  1. 

*  Reitenbaugh  v.  Chester  Valley  Railw.,  21  Penn.  St.  100.  But  where  the 
company  have  the  j-ight  to  lay  their  road,  not  exceeding  six  rods  in  width,  and 
have  fkced  the  centre  line  of  the  same,  they  may  apply  for  the  appointment  of 
appraisers,  and  determine  the  width  of  the  road,  any  time  before  the  appraisal. 
Williams  v.  Hartford  &  New  Haven  Railw.,  13  Conn.  110.  But  slight,  if  indeed 
any  evidence  of  this  failure  to  agree  with  the  land-owner  is  required,  where  the 
claimant  appears  and  makes  no  objection  on  that  ground.  Doughty  v.  Somerville 
&  Eastern  Railw.,  1  Zab.  442.  And  the  petition  may  be  amended  where  this 
averment  is  omitted.   Pennsylvania  Railw.  v.  Porter,  29  Penn.  St.  166. 

3  Atlantic,  i&c.  Railw.  v.  Sullivant,  5  Ohio  N.  S.  276. 

*  Baltimore  &  Susquehanna  Railw.  v.  Nesbit,  10  How.  (U.  S.)  395.  '  See 
also  Compton  v.  Susquehanna  Railw.,  3  Bland,  386,  391 ;  Van  Wickle  v.  Railw., 
2  Green,  162 ;  Stacy  r.  Vermont  Central  Railw.,  27  Vt.  39 ;  Levering  v.  Railw. 
Co.,  8  Watts  &  Serg.  459.  And  upon  pajinent  of  the  compensation  assessed 
by  commissioners,  and  taking  possession  afterward,  the  title  of  the  company  is 
perfected,  as  against  the  party  to  the  proceedings.  Bath  River  Navigation  Co. 
t>.  Willis,  2  Railw.  C.  7. 

»  Stacy  V.  Vermont  Central  Railw.,  27  Vt.  39. 
♦240 


§  65.  CONDITIONS  PRECEDENT.  289 

this  subject  is  thus  summed  up :  Where  the  charter  of  the  com- 
pauy  provides,  that  after  the  appraisal  of  laud,  for  their  use,  "  upon 
the  payment  of  ilie  samey*  or  deposit,  (as  the  case  may  be,)  the 
company  shall  be  deemed  to  be  seized  and  possessed  of  all  such 
lands,  "  they  must  pay  or  deposit  the  mouey  before  any  such  right 
accrues."  —  "  The  payment  or  deposit  of  the  money  awarded  is  a 
condition  precedent  to  the  right  of  the  company  to  enter  upon  the 
land  for  the  purposes  of  construction,  and  without  compliance  with 
it  they  may  be  enjoined  by  a  court  of  equity,  or  prosecuted  in  tres- 
pass at  law,  for  so  doing.  The  right  of  the  land-owner  to  the 
damages  awarded  is  a  correlative  right  to  that  of  the  company  to 
the  land.  If  the  company  has  no  vested  right  to  the  land,  the 
land-owner  has  none  to  the  price  to  be  paid." 

4.  And  where  the  charter  contained  the  usual  power  to  take 
land,  it  was  held,  that  after  laying  out  their  road  and  filing  the 
location  in  the  land  office,  the  company  had  acquired  a  right  of 
entry,  which  subsequent  purchasers  were  bound  to  respect.^ 

5.  And  where  the  road  has  been  laid  and  the  damages  *  assessed, 
and  confirmed  by  the  court,  the  owner  of  the  land  is  entitled  to 
execution,  although  the  company  have  not  taken  possession  of  the 
land,  and  may  desire  to  change  the  route.' 

6.  But  where  the  railway  enter  into  the  possession  of  the  land, 
and  construct  their  road  without  having  paid  the  whole  of  the 
damages  assessed  therefor,  a  court  of  equity  will  enforce  the  pay- 
ment by  an  order  for  such  payment  within  a  time  named,  and  in 
default  will  restrain  the  company  by  injunction  from  using  the 
land  until  the  price  is  paid.^  In  one  case  it  was  held,  that  where 
the  railway  is  surveyed  and  located  and  the  land-owner  consents 
to  the  company  entering  and  building  their  road  before  the 
damages  arc  ascertained,  under  an  agreement  that  this  shall  be 
done  thereafter,  and  the  road  is  thereupon  constructed,  the  title 
to  the  land  passes,  and  the  owner  retains  no  lien  thereon  for  his 
damages,  but  must  look  for  payment  to  the  party  contracting.* 
But  in  a  recent  English  case,^®  it  was  held  that  the  owner  of  lands 

•  Davis  V.  E.  T.  &  Ga.  Railw.,  1  Sneed,  94. 

'  Neal  r.  Pitteburgh  &  Connelsville  Railw.,  31  Penn.  St.  19. 

8  CozcM  p.  Bognor  Railw.,  Law  Rep.  1  Ch.  694 ;  a.  c.  12  Jur.  N.  S.  738. 

•  Knappc.  McAuley,  39  Vt.  275.  But  in  this  state  the  vendor's  lien  upon 
real  estate  for  the  price  is  expressly  repealed  by  act  of  the  legislature. 

«»  Walker  p.  Ware,  &c.  Railw.  Law  Rep.  1  Eq.  195. 

♦241 


240  EMINENT   DOMAIN.  CH.  XI. 

taken  possession  of  by  a  railway  company,  either  under  statutory 
power  or  by  agreement,  has  a  lien  thereon  for  the  purchase-money 
and  also  for  the  damages  to  the  adjoining  land,  if  not  the  subject 
of  a  special  agreement,  inconsistent  with  the  continuance  of  such 
lien.  Of  this  lien  he  is  not  deprived  by  a  deposit  and  bond  under 
the  statute,  or  by  accepting  a  deposit,  less  than  the  whole  amount 
due  him,  and  a  court  of  equity  will  enforce  this  lieu,  although  the 
railway  has  been  opened  for  public  use. 

7.  And  where  a  subscription  of  land  is  made  to  a  railway  com- 
pany, upon  some  condition  precedent  to  be  performed  by  the 
company,  such  condition  is  waived  by  conveying  the  land  and 
certificates  of  stock.  But  if  such  conveyance  is  induced  by  false 
representations,  the  company  may  be  compelled  to  perform  it,  or 
by  tendering  a  return  of  the  certificates  the  entire  conveyance 
may  be  set  aside,  even  after  the  company  have  conveyed  the 
land  to  others  conversant  of  the  facts  at  the  time  of  such  con- 
veyance.^ 

SECTION    IV. 
Preliminary  Surveys. 


4.  Company  liable  for  materials. 

5.  Bight  to  take  materials. 

6.  7.  Location  (^survey. 


1.  May  be  made  without  compensation. 

2.  Company  not  trespasser. 

3.  For  what   purposes  company  nwy  enter 

upon  lands. 

§  66.  1.  It  is  settled  that  the  legislature  may  authorize  railway 
companies  to  enter  upon  lands  for  the  purpose  of  preliminary 
surveys,  without  making  compensation  therefor,  doing  as  little 
damage  as  possible,  and  selecting  such  season  of  tlje  year  as  will 
do  least  damage  to  the  growing  crops.  The  proper  rule  to  be 
observed,  in  this  respect,  being  such  as  a  prudent  owner  of  the 
land  would  be  likely  to  adopt,  in  making  such  surveys  for  his  own 
advantage.^ 

*  2.  In  the  English  statutes,  and  in  many  of  the  special  charters 
and  general  railway  acts  in  the  American  states,  the  company  are 
bound  to  make  compensation  for  such  temporary  use  of  the  land, 

»  Cushman  ».  Smith,  34  Maine,  247;  Polly  v.  S.  &  W.  Railw.  Co.,  9  Barb. 
449 ;  Bloodgood  r.  Mohawk  &  H.  Railw.  Co.,  14  Wend.  51 ;  8.  c.  18  Wend.  9 ; 
Mercer  r.  McWilliams,  Wright  (Ohio),  132.      But  in  some  states  the  party  is 
made  liable  by  statute  for  damages  for  temporary  occupation. 
•242 


§  66.  PRELIMINARY  SURVEYS.  241 

where  they  do  not  ultimately  take  the  land.  But  in  such  case, 
where  the  statute  authorizes  the  entry  upon  the  land,  the  company 
are  not  to  be  treated  as  trespassers,  and  even  where  the  statute 
provides  for  no  compensation,  it  is  not  regarded  as  taking  private 
property  for  public  use,  within  the  provisions  of  the  American  state 
and  United  States  constitutions. 

3.  Under  the  English  statute  the  notice  to  use  lands  for  tem- 
porary purposes  should  specify  the  particular  purpose  for  which 
the  lands  are  required.*  By  the  English  statute,*  the  company 
may  make  a  temporary  entry  upon  land  for  the  following  pur- 
poses :  — 

1st.   For  the  purpose  of  taking  earth,  or  soil,  by  side  cuttings. 

2d.   For  the  purpose  of  depositing  spoil. 

od.  For  the  purpose  of  obtaining  materials  for  the  construction 
or  repair  of  the  railway. 

4th.  For  the  purpose  of  forming  roads  to,  from,  or  by  the  side 
of  the  railway.* 

5th.  By  section  42,  if  the  owner  of  such  lands,  as  the  company 
give  notice  of  temporary  occupation,  elect  to  sell  to  the  company 
and  give  them  notice  accordingly,  they  are  compellable  to  buy, 
and  in  all  other  cases  to  make  compensation  for  all  injury  to  the 
same. 

4.  It  has  been  held,  in  regard  to  the  right  of  railway  companies 
to  take  materials  from  lands  adjoining  their  survey  to  build  *  their 
road,**  that  the  damages  need  not  be  appraised  till  after  the  materials 
were  taken :  that  the  commissioners  had  authority  to  assess  dam- 
ages for  every  act  which  the  company  might  lawfully  do  under 
their  charter :  that  the  company  had  the  right  to  take  such  materi- 
als, in  invitum,  and  to  use  other  land,  without  their  survey,  for 

*  Pojmder  v.  The  Great  N.  Railw.  Co.,  16  Sim.  3;  s.  c.  6  Railw.  C.  196. 
»  8  &  9  Vict.  ch.  20,  §  32. 

*  In  Webb  v.  The  Manchester  &  Leeds  Railw.  Co.,  4  Myl.  &  Cr.  116;  8.  c. 
1  Railw.  C.  576,  599,  Lord  Cottenham,  Ch.,  is  reported  to  have  said:  "The 
powers  given  to  these  companies  are  so  large,  and  frequently  so  injurious  to  the 
interests  of  individuals,  that  I  think  it  is  the  duty  of  every  court  to  keep  them 
most  strictly  within  those  powers,  and  if  there  is  any  reasonable  doubt  as  to  the 
extent  of  their  powers,  they  must  go  elsewhere  and  get  enlarged  powers,  but 
they  will  get  none  from  me,  by  way  of  construction  of  the  act." 

*  Vermont  Central  Railw.  v.  Baxter,  22  Vt.  365.  See  also  Bliss  c.  IIos- 
mer,  15  Ohio,  44 ;  Lyon  r.  Jerome,  15  Wendell,  669 ;  Wheelock  t.  Young  & 
Pratt,  4  Wendell,  647.  Also  Lesher  c.  The  Wabash  Nav.  Co.,  14  lUinois,  86. 
See  po8t,  §  68. 

16  •243 


242  EMINENT  DOMAIN.  CH.   XI. 

preparing  stone  for  their  use :  that  the  same  right  equally  resided 
in  the  contractors  to  build  the  road :  and  that  the  corporation  is 
liable  to  the  land-owner  for  materials  so  taken  by  the  contractors, 
notwithstanding  any  stipulations  in  the  contract  of  letting  exempt- 
ing them  from  such  liability,  as  between  themselves  and  the  con- 
tractors. 

6.  It  has  sometimes  been  made  a  question,  in  this  country,  how 
far  the  legislature  could  confer  upon  railway  companies  the  power 
to  take  materials,  without  the  limits  of  their  survey,  in  invitum.^ 
And  in  a  somewhat  recent  case,^  where  the  charter  of  the  company 
authorized  them  to  take  land,  so  much  as  might  be  necessary  for 
their  use,  and  also  to  take  for  certain  purposes  earth,  gravel,  stone, 
timber,  or  other  materials,  on  or  from  the  land  so  taken,  it  was  held 
the  company  were  not  thereby  empowered  to  take  materials  from 
land  not  taken. 

6.  But  a  railway  company,  who  enter  upon  land  to  construct 
their  road  before  the  time  for  filing  the  location  of  their  line,  are 
liable  as  trespassers,  if  the  location  when  filed  does  not  cover  the 
land  so  entered  upon.'^ 

7.  And  the  onus  is  upon  the  company  to  justify  by  showing  that 
the  land  is  covered  by  the  authorized  location.'  The  location  filed 
by  the  company  is  conclusive  evidence  of  the  land  *  taken,  and  can- 
not be  controlled  by  extrinsic  evidence,  though  a  plan  or  map, 
made  a  part  of  the  description  of  the  location,  and  filed  with  the 
written  location,  may  be  referred  to  for  explanation,  but  not  to 
modify  or  control  the  written  location.'^ 

*  Parsons  v.  Howe,  41  Me.  218.  And  under  the  English  statute  it  has  been 
held  that  the  company  are  not  justified  in  taking  land  compulsorily,  which  is 
required,  not  for  the  purpose  of  constructing  any  portion  of  the  works  upon  it, 
but  to  supply  earth  or  other  material  to  be  used  upon  other  land.  Bentinck  v. 
Norfolk  Estuary  Co.,  8  De  G.  M.  &  G.  714. 

^  Hazen  v.  The  Boston  &  Maine  Railw.,  2  Gray,  674;  Stone  r.  Cambridge, 
6  Cush.  270 ;  Hayes  v.  Shackford,  3  N.  H.  10 ;  Lewiston  v.  County  Commis- 
sioners, 30  Maine,  19 ;  Little  v.  Newport,  A.  &  H.'  Railw.,  12  C.  B.  752 ;  8.  c. 
U  Eng.  L.  &.  Eq.  309 ;  Springfield  v.  Conn.  River  Railw.,  4  Cush.  63,  69,  70. 

♦244 


§  67.  POWEB  TO  TAKE  TEMPOBABT  POSSESSION.  243 

SECTION  V. 
Power  to  take,  temporary  Possession  of  Public  and  Private  Ways. 


The  railuxty  company  mag  take  postesnon 
of  public  or  private  ways,  in  building 
their  works.    Responsibility. 

Remedy  under  the  statutes,  utJess  special 
damage. 


8.  Party  excavating  highway  tn  building 
$ewer  and  having  restored  it,  nojvxihtr 
responsibU. 


§  67.  1.  Under  the  English  statute,^  the  company  have  the 
power,  upon  notice,  to  take  temporary  possession  of  private  roads ; 
and  by  other  sections,  they  may  take  possession  of,  cut  through, 
and  interrupt  public  roads.  But  in  all  such  cases  the  damage  is 
to  be  compensated,  and  the  road  restored,  when  practicable,  and  if 
not,  a  substituted  one  made. 

2.  If  a  private  way  be  obstructed,  the  remedy  is  to  sue  for  pen- 
alty under  the  statute,  or  to  bring  an  action  under  the  statute  for 
special  damage.  But  it  is  said  an  action  upon  the  case  for  the 
obstruction  cannot  be  maintained,  except  in  the  case  of  special 
damage,  which  is  expressly  saved  by  the  statute.^ 

3.  A  party  who  excavates  a  public  highway  for  the  purpose  of 
constructing  a  sewer,  by  contract  with  the  public  authorities,  and 
who  properly  restores  the  same  at  the  termination  of  his  work,  is 
not  further  responsible.  But  the  parish  must  look  after  the  sub- 
sequent repairs,  whether  rendered  necessary  by  the  natural  subsi- 
dence of  the  earth,  by  reason  of  the  former  excavation,  or  by 
ordinary  wear  and  tear.^ 

>  8  and  9  Vict.  c.  20,  §  30. 

•  Watkina  r.  Great  Northern  Railw.  Co.,  16  Q.  B.  961 ;  8.  c.  6  Eng.  L.  & 
Eq.  179.  But  in  Rangclcy  v.  Midland  Railw.  Law  Rep.,  3  Ch.  Ap.  306,  it  is 
said  the  company  have  no  power  under  the  statute  to  divert  a  public  foot-path, 
80  as  to  place  it  upon  land  of  which  it  had  not  acquired  the  title. 

'  Hyams  c.  Webster,  Law  Rep.,  2  Q.  B.  264. 


244 


EMINENT   DOMAIN. 


CH.    XI. 


SECTION   VI, 


Land  for  Ordinary  and  Extraordinary  Uses. 


1.  By  English  statute  may  take  land  for  all 

necessary  uses. 

2.  Companies  have  the  same  power  here. 


8.   So  also  of  companies  connecting  at  state 
lines. 


§  68.  1.  By  the  English  statutes,  railway  companies  may  not 
only  purchase  land  for  the  purpose  of  the  track,  but  also  for  all 
such  extraordinary  uses  as  will  conduce  to  the  successful  prosecu- 
tion of  their  business.^  This  includes  the  site  of  stations,  *  yards, 
wharves,  places  for  the  accommodation  of  passengers,  and  the  de- 
posit of  freight,  both  live  and  dead,  and  for  the  erection  of  weighing 
machines,  toll-houses,  offices,  warehouses,  and  other  buildings  and 
conveniences ;  land  for  ways  to  the  railway  while  in  the  course  of 
construction,  and  to  stations  always.  But  a  railway  company  in 
England  cannot  acquire  the  fee  of  land  for  the  mere  purpose  of  ex- 
cavating soil  in  order  to  construct  an  embankment.^  And  it  has 
been  decided  that  a  railway  company  cannot  take  land  for  any 
subsidiary  purpose,  even  where  the  du-ect  act  of  the  company 
comes  within  the  powers  granted  them.^    As  where  they  proposed 

*  8  «&  9  Vict.  ch.  20,  §  45.  This  section  is  only  operative  to  enable  the  com- 
pany to  take  lands  for  extraordinary  purposes,  beyond  the  line  of  deviation,  by 
consent  of  the  owners.  But  it  is  held  that  the  justices  have  na  jurisdiction, 
under  the  Railway  Clauses  Consolidation  Act,  to  determine  when  accommoda- 
tion works  are  necessary,  but  only  what  works  are  necessary,  assuming  that  some 
such  works  are  to  be  made.  Reg.  v.  Waterford  &  L.  Railw.,  2  Irish  Law  (n.  s.) 
680.     See  post,  %  99. 

In  the  case  of  Chicago,  Burlington,  &  Quincy  Railw.  ».  Wilson,  17  111.  123, 
it  was  held,  that  a  grant  to  a  railway  company  to  construct  a  road,  with  such 
appendages  as  may  be  deemed  necessarj'  for  the  convenient  use  of  the  same, 
will  authorize  them  to  take  land,  compulsorily,  for  workshops.  And  this  power 
is  not  exhausted  by  the  apparent  completion  of  the  road ;  but  if  an  increase  of 
business  shall  require  other  appendages,  or  more  room  for  tracks,  it  may  in  like 
manner  be  taken,  toties  quoties.  But  the  land-owner  may  traverse  the  right  of 
the  company  to  take  the  land,  and  have  it  determined  by  the  proper  tribunal. 
S.  Carolina  Railw.  v.  Blake,  9  Rich.  228.  So  also  the  company  may  take  land 
for  erecting  a  paint-shop  and  lumber  and  timber  sheds  for  the  use  of  the  com- 
pany.    Low  V.  Galena  &  Chicago  Union  Railw.,  18  111.  324. 

«  Eversfield  r.  Midsussex  Railw.,  1  Gif.  151 ;  s.  c.  affirined,  3  De  G.  &  J.  286. 

»  Dodd  r.  Salisbury  &  Y.  Railw.,  1  Gif.  158 ;  s.  c.  on  appeal,  5  Jur.  N.  S.  782. 
*246 


§  68.  LAND   FOB  ORDINARY    AND   EXTRAORDINARY   USES.  245 

to  alter  the  course  of  the  road,  in  such  a  manner  as  to  accommodate 
an  adjoining  land-owner,  in  consideration  of  which  he  proposed  to 
pay  a  portion  of  the  expense  of  the  alteration,  the  company  were 
enjoined  from  making  the  alteration,  although  coming  clearly 
within  their  powers,  if  done  solely  for  their  own  accommodation. 
The  ground  of  the  injunction  was,  that  the  alteration  required  the 
removal  of  the  house  of  A.,  and  the  change  was  made  partly  for 
the  accommodation  of  B.,  a  purpose  not  within  the  powers  granted 
the  railway  company.  But  it  is  incident  to  the  grant  of  a  railway, 
that  it  may  lay  down  as  many  sidings  and  other  collateral  tracks 
as  are  fairly  requisite  *  to  accommodate  its  business.*  But  this  will 
not  allow  the  company  to  build  a  branch  road  on  a  different  route 
from  that  embraced  in  its  charter.* 

2.  The  same  may  undoubtedly  be  done,  in  this  country,  whether 
any  express  provision  to  that  effect  is  contained  in  the  charter  of  the 
company,  or  the  general  statutes  of  the  state,  or  not ;  such  power 
being  necessarily  implied,  as  indispensable  to  the  accomplishment 
of  the  general  purposes  of  the  corporation,  and  the  design  of  the 
legislative  grant. 

3.  And  the  same  implied  power  is  to  be  extended  to  a  railway 
corporation,  in  a  neighboring  state,  with  which,  by  express  statute, 
railways  of  the  state  where  the  lands  lie  have  the  riglit  to  unite  at 
the  line  of  the  state,^  or  to  extend  their  road  into  this  *  state.* 

^  B.  O.  &  M.  Railw.  Co.  v.  Smith,  47  Me.  35.  A  grant  to  cross  a  highway 
will  not  justify  running  parallel  to  and  upon  it.     lb. 

*  State  V.  Boston,  Conconl,  &  Montreal  Railw.  Co.,  25  Vt.  433.  In  this 
case  a  railway  company  in  New  Hampshire  had  constructed  their  road  to  the 
line  of  Vermont  (where,  by  statute  of  the  legislature  of  Vermont,  two  other 
roads  were  chartered,  with  permission  to  unite  with  any  New  Hampshire  road), 
and  had  there  purchased  some  fiflccn  acres  of  land,  adjoining  the  terminus  of 
their  road,  which  is  of  course  the  *'  westernmost"  bank  of  Connecticut  River, 
their  bridge  being  all  in  New  Hampshire  except  the  western  abutment,  which 
of  necessity  must  rest  upon  Vennont  soil.  The  company  had  no  express  grant 
from  the  legislature  of  Vermont.  A  controversy  arising  between  this  New 
Hampshire  road  and  the  Vermont  roads  at  this  point,  in  regard  to  the  terms  of 
junction,  a  quo  warraivto  was  prosecuted  on  behalf  of  the  state,  to  determine 
the  right  of  the  New  Hampshire  railway  to  purchase  and  hold  lands  in  the  state 
of  Vermont. 

It  was  attempted  to  maintain,  on  the  part  of  the  prosecution,  that  there 
existed  a  right  in  any  state  to  confiscate  or  escheat  lands  held  by  a  foreign  cor- 
poration.    But  the  court  repudiated  the  proposition,  and  held  that  the  New 


•  New  York  &  Erie  Railw.  r.  Young,  38  Penn.  St.  175. 

*  246,  247 


246  EMINENT  DOMAIN.  CH.  XI. 

And  for  the  purpose  of  exercising  the  rights  conferred  by  their  act 
upon  the  company,  the  contractor  for  the  execution  of  railway 
works  must  be  deemed  an  agent  of  the  company.'^ 


SECTION    VII. 

T^tle  acquired  hy  Company. 

1.  Company  have  only  right  of  way.  10.   Law  not  the  same  in  all  the  states. 

2.  Can  take  nothing  from  soil  except  for  con-     11.   Rule  in  Massachusetts. 

struction.  '  12,  13.   Land  reverts  to  the  owner. 

8.  Deed  in  fee-simple  to  company.  14.    True  rule  stated. 

4.  For  what  uses  may  take  land.  15.    Conditions  must  be  performed. 

5.  Right  to  cross  railway,  extent  of.  16.   Further  assurance  of  title. 

6.  Conflicting  rights  in  different  companies.       17.    Condemnation  cannot  be  impeached. 

7.  8.   Rule  in  the  American  states.  18.    Where  public  acquire  fee,  it  will  never 

9.  Right  to  use  streets  of  a  city.  revert  to  grantor. 

§  69.  1.  Questions  have  sometimes  arisen,  in  regard  to  the  pre- 
cise title  acquired  by  a  railway  company  in  lands  purchased  by 
them,  where  the  conveyance  is  a  fee-simple.  It  is  certain,  in  this 
country,  upon  principle,  that  a  railway  company,  by  virtue  of  their 

Hampshire  road,  by  the  grant  from  the  Vermont  legislature  of  the  right  of  the 
Vermont  roads  to  form  a  junction  with  this  road,  at  the  line  of  the  state,  had 
acquired  the  implied  permission  to  purchase  and  hold  so  much  land  as  was 
necessary  for  the  accommodation  of  their  present  and  prospective  business  at 
that  point,  whether  any  junction  had  yet  been  arranged  at  the  point  or  not; 
and  that  fifteen  acres  was  not  an  unreasonable  extent  of  land  for  such  purposes, 
there  being  no  question  but  the  New  Hampshire  railway  had,  by  its  charter, 
the  right  to  hold  real  estate,  for  the  necessary  purposes  of  its  incorporation,  to 
an  amount  beyond  what  it  had  yet  purchased. 

The  court  in  this  case  did  not  hold  that  the  New  Hampshire  road  had  any 
right  to  take  land  by  compulsory  proceedings  in  Vermont,  or  that  their  purchase 
of  the  land  would  deter  the  Vermont  roads,  at  this  point,  from  taking  by  statu- 
tory compulsion  from  them  such  portions  of  the  same  land  as  they  might  require 
for  their  own  purposes.  See  also  Nashville  Railw.  v.  Cowardin,  11  Humph. 
848.  In  the  Supreme  Court  of  New  Hampshire,  20  Law  Rep.  646,  Crosby  v. 
Hanover,  it  was  held  that  the  franchise  of  a  toll-bridge  across  Connecticut 
River  might  be  taken  for  a  free  highway,  upon  compensation  being  made  to  the 
proprietors ;  and  that  it  made  no  difference,  that  one  of  the  abutments  of  the 
bridge  was  within  the  limits  of  the  State  of  Vermont,  and  consequently  could 
not  be  taken  by  any  proceedings  in  New  Hampshire.     8.  c.  36  N.  H.  404. 

'  Semple  v.  The  London  &  Birmingham  Railw.,  9  Siiji.  209;  s.  c.  1  Railw. 
C.  480 ;  Vt.  Central  Railw.  p.  Baxter,  22  Vt.  365 ;  ante,  §  66 ;  Lesher  v.  Wabash 
Nav.  Co.,  14  lU.  85. 


§  69.  TITLE  ACQUIRED  BY  COMPANY.  247 

compulsory  powers,  in  taking  lands,  could  acquire  no  absolute  fee- 
simple,  but  only  the  right  to  use  the  land  for  their  purposes.  And 
it  is  very  questionable  whether  a  railway,  in  such  case,  is  entitled 
to  the  herbage  growing  upon  the  land,  or  to  cultivate  the  same,  or 
to  dig  for  stone,  or  minerals,  in  the  land,  beyond  what  is  neces- 
sary for  their  purposes  in  construction. 

2.  In  England,  the  statutes^  give  all  such  minerals  to  the  *  for- 
mer owner  of  the  land,  except  such  as  are  necessary  in  con- 
struction, unless  the  same  shall  have  been  expressly  purchased. 
And  in  this  country,  no  doubt,  the  same  construction  would 
be  adopted,  in  regard  to  all  lands  taken  by  compulsory  proceed- 
ing.2 

'  8  and  9  Vict.  c.  20,  §  17.  In  Conn.  &  Pass.  Railw.  Co.  r.  Holton,  32  Vt. 
48,  it  was  decided,  that  the  land-owner,  after  his  land  was  legally  appropriated 
for  the  track  of  a  railway,  has  no  right  to  enter  upon  or  use  such  land  for  any 
purpose  which  in  the  least  degree  endangers  or  embarrasses  its  use  for  any  pur- 
pose for  which  the  railway  has  appropriated  it.  And  consequently  the  owner 
could  not  enter  upon  the  land  with  teams  to  remove  turf  therefrom,  the  effect 
of  such  entry  being  to  enhance  the  danger  of  cattle  getting  upon  the  track,  and 
to  increase  the  dust  by  the  passage  of  the  cars  after  the  sward  is  removed  from 
the  sides  of  the  track.  And  the  land-owner  has  no  right  to  cross  the  track  of 
the  company  at  any  other  point  than  that  established  by  the  taking  of  the  land ; 
nor  can  he  build  a  farm-crossing,  unless  established  by  law.  And  a  railway 
company  may  maintain  trespass  for  all  ■  unlawful  entries  and  acts  upon  the  land 
appropriated  to  their  use  when  such  acts  interfere  with  their  exclusive  possession. 
8.  p.  in  N.  Penn.  R.  v.  Rehman,  5  Am.  Law  Reg.  N.  S.  49. 

•  Baker  r.  Johnson,  2  Hill  (N.  Y.),  342.  It  was  held  here,  that  a  con- 
tractor to  build  a  canal,  who  stipulated  with  the  commissioners  to  find  all  the 
materials  necessary  to  the  performance  of  the  work,  with  stipulations  in  the  con- 
tract that  he  might  use  all  the  earth  obtained  by  excavation,  might  also  use  the 
stone  obtained  by  excavating  the  bed  of  the  canal  across  plaintiff's  land,  and 
that  trover  will  not  lie  for  such  use.  Timber  standing  on  land  taken  for  a  rail- 
way belongs  to  the  owner  of  the  land,  except  so  far  as  necessary  for  the  con- 
struction and  repair  of  the  road.  Preston  p.  Dub.  &  Pacific  Railw.  Co.,  11  Iowa, 
16.  Earth  and  minerals  above  the  grade  of  the  road  may  be  used  by  the  com- 
pany, but  those  below  belong  to  the  owner  of  the  land.  Evans  v.  Ilaefner,  29 
Mo.  141. 

The  condemnation  of  land  for  the  construction  of  a  railway  justifies  the  entry 
and  necessary  excavation  of  the  soil  by  the  company  and  its  servants.  Green 
p.  Boody,  21  Ind.  10.  But  stone  excavated  in  the  construction,  and  which  is 
not  used  upon  any  portion  of  the  line,  belongs  to  the  owner  of  the  land. 
Chapin  p.  Sullivan  Railw.  Co.,  39  N.  H.  564.  But  it  seems  from  this,  and 
from  the  general  practice  in  the  construction  of  railways,  that  earth  or  any  other 
material  which  is  excavated  upon  one  portion  of  the  line  may  be  used  upon  any 
other  portion,  if  required. 

•248 


248  EMINENT  DOMAIN.  CH.  XI. 

3.  But  it  admits  of  some  question,  we  think,  what  is  the  precise 
effect  of  a  deed,  in  fee-simple,  to  a  railway  company.  It  would 
seem,  upon  general  principles,  that  the  grantor  should  be  estopped 
from  claiming  any  interest  in  the  land,  after  the  execution  of  his 
deed.  But  it  seems  to  be  agreed,  in  all  the  books,  that,  to  the 
efficacy  of  a  deed  of  land,  it  is  requisite  that  the  grantee  be  capable 
of  taking  the  estate.  And  if  the  grantee  be  *  an  alien,  or  a  cor- 
poration incapable  of  holding  such  estate,  the  deed  is  inoperative. 
Hence,  in  some  of  the  cases,  it  seems  to  be  a  just  inference  from 
the  reasoning  of  the  court,  that  a  railway,  by  a  deed  in  fee-simple, 
acquires  only  a  right  of  way,^  that  being  all  which  such  corpora- 
tion is  capable  of  taking. 

4.  It  has  been  held  in  some  of  the  states,  that  the  lands  of  a 
railway  company  are  subject  to  sale  upon  execution  against  them, 
or  may  be  assigned  by  them.^     So,  too,  they  may  purchase  *  and 

^  Dean  v.  Sullivan  Railw.,  2  Foster,  316  ;  United  States  v.  Harris,  1  Sumner, 
21.  It  is  held  in  some  cases,  that  a  grant  to  a  railway,  before  its  incorporation, 
is  valid,  not  being  the  conveyance  of  a  fee,  and,  to  its  operation  and  effect,  not 
requiring  the  existence  of  a  grantee,  at  the  time  of  the  conveyance.  Rathbone 
V.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  47.  But  it  seems  now  to  be  con- 
sidered that  railway  companies  may  acquire  the  absolute  fee  in  land  by  purchase 
and  deed  in  fee-simple,  and  the  title  will  remain  in  the  company  after  it  has 
changed  the  location  of  its  road,  and  ceased  to  use  it  for  corporate  purposes. 
Page  V.  Heineberg,  40  Vt.  81. 

*  Arthur  v.  Commercial  &  Railroad  Bank,  9  Smedes  &  Marshall,  394.  But 
this  right  to  levy  upon  the  lands  of  a  railway  company  only  extends  to  such 
lands,  however  acquired,  as  are  not  required  to  the  full  exercise  and  enjoyment 
of  the  corporate  franchise.  Plymouth  Railw.  Co.  v.  Colwell,  39  Penn  St.  337. 
And  a  canal  basin  is  not  such  a  legitimate  incident  of  a  railway  franchise  as  to 
be  protected  from  levy,  where  there  is  no  authorized  canal  connection.  lb. 
And  town  lots  held  by  a  railway  company  are  not  to  be  regarded  as  an  incident 
of  the  franchise,  so  as  to  pass  by  a  mortgage  of  the  road  "  with  its  corporate 
privileges  and  appurtenances,"  unless  directly  appurtenant  to  the  road  and  indis- 
pensably necessary  to  the  exercise  of  its  franchises.  Shamokin  Valley  Railw.  v. 
Livermore,  47  Penn.  St.  465. 

It  has  been  held,  that  railway  bonds  were  liable  to  levy  on  execution,  but  that 
seems  questionable.     Hetherington  et  al.  v.  Hayden,  11  Iowa,  835. 

In  a  recent  case  in  Vermont,  Hill  v.  Western  Vermont  Railw.  Co.,  32  Vt.  68, 
the  company,  before  the  road  was  laid  out  or  surveyed,  procured  a  bond  from 
B.  to  sell  them  such  lands  owned  by  him  as  should  be  required  for  their  road. 
Their  charter  provided  that  the  directors  might  cause  such  surveys  of  the  road 
to  be  made  as  they  deemed  necessary,  and  fix  the  line  of  the  same,  and  that  the 
company  might  enter  upon  and  take  possession  of  such  lands  as  were  necessary 
(or  the  construction  of  their  road  and  requisite  accommodations.  The  survey  of 
*  249,  260 


§  69.  TITLE   ACQUIRED   BY   COMPANY.  249 

hold  land  for  the  procurement  of  materials,  or  for  the  economical 
construction  of  the  road.^  In  a  late  English  case,*'  it  was  held  that 
the  railway  could  not  use  land,  thus  conveyed,  for  any  other  pur- 
pose than  that  expressed  in  the  acts  of  parliament,  by  virtue  of 
which  the  company  exercised  their  functions. 

5.  It  has  been  held  that,  where  one  railway  has  power  in  their 
act  to  cross  another  railway,  there  being  no  express  permission  in 
the  act  for  one  company  to  take  land,  or  for  the  other  company  to 
sell,  that  the  first  company  could  not  be  compelled,  by  mandamus, 
to  purchase  any  of  the  land  upon  which  the  other  road  was  con- 
structed, their  only  claim  being  one  for  damages.'  So,  also,  the 
right  to  make  a  junction  with  a  pre-existing  railway,  does  not  im- 
ply the  power  to  take  the  title  to  any  of  the  lands  of  such  railway, 
unless  that  is  indispensable  to  effect  the  junction,  but  only  to  enter 
upon  such  lands,  by  way  of  easement,  for  the  purpose  of  eflfccting 
the  junction.® 

6.  But  where  the  legislature  confer  the  power  upon  two  railway 

the  road,  made  by  order  of  the  directors,  designated  certain  land  belonging  to 
B.  as  de{)ot  grounds ;  and  the  company  paid  him  for  and  took  the  same,  but 
ntfver  received  any  conveyance  thereof  from  him.  The  plaintiff,  having  re- 
covered a  judgment  against  the  company,  levied  his  execution  upon  a  portion 
of  this  land,  and  brought  ejectment  against  the  company  to  recover  possession 
thereof.  The  referee,  to  whom  the  case  was  referred,  found  that  a  part  of  the 
land  embraced  in  the  levy  was  never  necessary  to  the  company  for  railway 
purposes,  and  would  not  become  so  prospectively.  Field,  tliat  by  B.'s  contract 
with  the  company  he  was  not  bound  to  convey  to  them  any  greater  quantity  of, 
or  estate  in,  his  land  than  they  required  for  depot  accommodations  ;  that  under 
their  charter  the  company  could  not  acquire  any  more  land,  or  any  greater  estate 
therein,  for  the  purposes  of  a  road-bed  or  stations,  than  was  really  requisite 
for  such  uses ;  that  the  estate  so  requisite  was  not  one  in  fee-simple,  but 
merely  an  easement,  and  was,  therefore,  not  subject  to  be  levied  upon  by  the 
creditors  of  the  company ;  that  when  taken  for  such  purposes,  the  rule  was 
the  same,  whether  the  land  was  taken  compulsorily  by  condemnation  and  the 
award  of  commissioners,  as  to  its  extent  and  price,  or  under  the  agreement  of 
the  parties  as  to  one  or  both  of  these  particulars ;  that  under  their  charter  the 
directors  had  power  to  lay  out  their  road  and  stations  as  they  saw  fit ;  and  that, 
so  long  as  they  acted  in  good  faith  and  not  recklessly,  their  decision  as  to 
the  quantity  of  land  required  for  depot  accommodations  would  be  regarded  as 
conclusive. 

*  Overmyer  v.  Williams,  15  Ohio,  26. 

*  Rostock  V.  The  North  Staffordshire  Railw.  3  Sm.  &  Gif.  283. 

'  Reg.  V.  South  Wales  Railw.,  13  Q.  B.  988;  s.  c.  6  Railw.  C.  489. 

*  Oxford,  Worcester,  &  Wolverhampton  Railw.  v.  South  Staffordshire  Railw., 
1  Drew,  266;  8.  c.  19  Eng.  L.  &  Eq.  131. 


250  EMINENT   DOMAIN.  CH.  XI. 

companies  to  purchase  corapulsorily  the  same  piece  of  land,  and 
one  company  has  taken  the  land  and  constructed  their  road  upon 
it,  equity  will  enjoin  the  other  company  from  proceeding  to 
take  it  compulsorily  for  their  use,  until  the  conflicting  rights  of 
the  companies  are  determined  by  a  trial  at  law.^ 

7.  Tlie  general  course  of  decisions  in  this  country  coincides 
*  with  the  English  common-law  rule,  in  regard  to  the  title  acquired 
by  the  public,  by  the  exercise  of  the  right  of  eminent  domain, 
that  is,  that  no  more  of  the  title  is  divested  from  the  former 
owner  than  what  is  necessary  for  the  public  usc^*^  The  owner 
may  still  maintain  trespass,  for  any  injury  to  the  freehold  by  a 
stranger.i^ 

8.  And  in  regard  to  railways,  in  particular,  it  has  been  repeat- 
edly decided  in  the  different  states,  that  they  take  only  an  ease- 
ment in  land  condemned  for  their  use.^^  In  an  important  case  ^ 
in  the  Supreme  Court  of  the  United  States,  involving  questions  of 
title  in  regard  to  the  streets  in  the  city  of  Pittsburgh,  Mr.  Justice 
McLean  thus  sums  up  the  general  doctrine  :  — 

"  By  the  common  law,  the  fee  in  the  soil  remains  in  the  original 
owner  where  a  public  road  is  established  over  it ;  but  the  use  of 
the  road  is  in  the  public.     The  owner  parts  with  this  use  only  ;  for 

»  Manchester,  S.  &  L,  Railw.  v.  The  Great  N.  Railw.,  9  Hare,  284;  s.  c.  12 
Eng.  L.  &  Eq.  216. 

'°  Dovaston  v.  Paj-ne,  2  H.  Bl.  527 ;  Rust  v.  Low,  6  Mass.  90 ;  Jackson  ». 
Rutland  &  Burlington  Railw.,  25  Vt.  151 ;  2  RoUe's  Ab.  566,  p.  1. 

"  Railroad  v.  Davis,  2  Dev.  &  Bat.  457 ;  Dean  v.  Sullivan  Railw.,  2  Foster, 
316  ;  Plank  Road  v.  Buff.  &  P.  Railw.,  20  Barb.  644;  Weston  v.  Foster,  7  Met. 
297.  In  a  late  case  in  Ohio,  where  the  subject  seems  to  have  been  examined 
with  care  and  study,  it  is  laid  down,  as  the  result  of  the  law  upon  the  subject, 
that  only  such  interest  as  will  answer  the  public  wants  can  be  taken ;  and  it  can 
be  held  only  so  long  as  it  is  used  by  the  public,  and  cannot  be  diverted  to  any 
other  purpose.  Giesy  v.  Cincinnati,  Wil.  &^anesv.  Railw.,  4  Ohio  N.  S.  308. 
See  also  Hooker  v.  Utica  &  Minden  Tump.  Co.,  12  Wend.  371 ;  People  v.  White, 
11  Barb.  26 ;  Blake  v.  Rich,  34  N.  H.  282.  The  title  of  the  land-owner  is  thus 
defined  in  this  last  case.  The  exclusive  right  of  property  in  the  land,  in  the 
trees  and  herbage  upon  its  surface,  and  in  the  minerals  below  it,  remains  un- 
changed, subject  always  to  the  right  of  the  company  to  construct  and  operate 
their  road,  in  any  legally  authorized  mode. 

"  Barclay  ».  Howell's  Lessee,  6  Pet.  498.  Cases  to  establish  the  general 
principle  here  announced  might  be  multiplied  to  any  extent.  They  will  be  found 
extensively  collected  in  3  Kent,  Comm.  432,  and  notes.  By  the  civil  law,  it  is 
said,  the  soil  of  public  highways  is  in  the  public,  and  the  law  of  Louisiana  is  the 
same.  Renthorp  v.  Bang,  4  Martin,  97. 
*261 


§  69.  TITLE  ACQUIRED   BY   COMPANY.  251 

if  the  road  shall  be  vacated  by  the  public  he  resumes  the  exclusive 
possession  of  the  ground ;  and  while  it  is  used  as  a  highway  he  is 
entitled  to  the  timber  and  grass  which  may  grow  upon  the  sur- 
face, and  to  all  minerals  which  may  be  found  below  it.  He  may 
bring  an  action  of  trespass  against  any  one  who  obstructs  the 
road." 

*  9.  But  a  query  is  expressed  here,  as  in  many  other  cases, 
whether  this  rule  applies  to  the  streets  and  thoroughfares  of  cities. 
In  a  late  case  in  one  of  the  British  provinces  on  this  continent, 
Nova  Scotia,  it  is  said  to  have  been  held,  by  a  divided  court,  after 
long  debate  and  deliberation,  that  the  title  to  land,  covered  by  a 
highway  or  street,  vested  absolutely  in  the  crown,  and  that  the 
owner  had  no  reversionary  interest.^* 

10.  Some  of  the  American  cases  seem  to  intimate  a  different 
rule  from  that  which  generally  prevails  in  reference  to  liighways, 
in  regard  to  the  title  acquired  by  railway  companies."  But  in  a 
late  case^  it  was  held,  that  the  municipal  authority  of  a  city  have 
no  power  to  grant  permission  to  a  railway  company  to  take  or 
injure  the  property  of  a  citizen  ;  but  the  companies  have  an  implied 
authority  to  make  such  sidetracks  and  continuations  at  the  ter- 
mini of  their  road  as  may  be  reasonable  and  necessary  for  the 
transaction  of  their  business  and  the  accommodation  of  the  public, 
and  may  take  private  property  for  these  purposes.     The  right  to 

"  Koch  r.  Dauphin,  James,  159. 

'*  Wheeler  v.  Rochester  &  Syra.  Railw.,  12  Barb.  227  ;  Munger  e.  Tonawanda 
Railw.,  4  Comst.  349;  Coster  r.  New  Jersey  Railw,,  3  Zab.  227.  The  New 
York  Court  of  Appeals,  quite  recently,  upon  elaborate  examination,  came  to  the 
conclusion,  that  a  deed  to  a  railway  company,  granting  land  to  it  and  its  succes- 
sors, conveys  an  estate  in  fee.  NicoU  r.  New  York  &  Erie  Railw.,  2  Kenian, 
121.  But  see  Henry  r.  Dubuque  &  Pacific  Railw.,  2  Clarke  (Iowa),  288.  In 
De  Varaigne  r.  Fox,  2  Blatchf.  C.  C.  95,  it  was  held,  that  where  the  statute 
conferred  the  right  to  take  the  fee  of  land,  and  it  was  taken  upon  compensation 
accordingly,  the  court  will  not  construe  the  grant  as  a  conditional  fee  or  usufruct, 
leaving  a  possible  reverter  to  the  original  proprietor,  but  will  regard  the  entire 
property  as  vested  in  the  grantee  for  ever,  and  that  if  any  right  accrues  to  the 
former  owner  in  consequence  of  the  change  of  the  destination  of  the  property, 
after  the  continuance  of  the  use  for  twenty-six  years,  it  is  an  etiuitable  and  not  a 
legal  right. 

'*  Protzman  v.  Ind.  &  Cin.  Railw.,  9  Ind.  467.  What  shall  be  a  reasonable 
extension  of  the  track  of  a  railway  in  a  city  beyond  the  depot  is  here  discussed. 
It  seems  to  be  more  a  question  of  fact  than  of  law.  Evansville,  &c.  Railw.  v. 
Dick,  id.  438. 

•262 


262  EMINENT   DOMAIN.  CH.  XI. 

use  and  enjoy  the  street  is  an  appurtenance  to  the  adjoining  land, 
and  an  injury  to  the  appurtenance  is  an  injury  to  the  whole  prop- 
erty ;  and  as  for  such  an  injury  the  statute  prescribes  no  remedy, 
tlie  land-owner  must  resort  to  his  common-law  remedy. 

*  11.  But  in  a  late  case  in  Massachusetts,^^  the  title  seems  to  us 
to  be  explicitly  and  fully  stated,  and  the  only  ground  of  distinction 
between  railways  and  common  highways,  as  to  the  title  of  the  land 
taken,  very  intelligibly  pointed  out.  Tlie  court  here  say,  "  the 
right  acquired  by  the  corporation,  although  technically  an  ease- 
ment, yet  requires  for  its  enjoyment  a  use  of  the  land  permanent 
in  its  nature  and  practically  exclusive." 

12.  Hence,  it  seems  to  be  admitted  that,  even  in  cases  where 
the  statute  provides  for  the  taking  of  the  fee,  upon  the  discontinu- 
ance of  the  public  use,  the  land  reverts  to  the  former  owner.^^ 
But  where  a  special  act  authorizes  a  municipal  corporation  to  hold 
the  fee  of  the  soil  for  the  site  of  an  almshouse,  it  was  held  that  the 
original  owner  and  his  representatives  could  claim  no  exclusive 
interest  therein,  or  any  reversionary  title  thereto,  after  the  re- 
moval of  the  almshouse  to  another  site.^^ 

'®  Hazen  v.  B.  &  M.  Railw.,  2  Gray,  674.  But  the  company  have  no  right  to 
do  any  act  upon  the  land  except  what  is  conducive  to  the  use  of  the  land  for  the 
purposes  of  their  grant,  of  which  they  are  the  judge.  Brainerd  v.  Clapp,  10 
Cush.  6.  In  this  case,  Shaw,  Ch.  J.,  thus  defines  the  title  of  the  railway,  in 
lands  taken  for  their  use :  "  The  railroad  company  are  authorized  to  do  all  acts, 
within  the  five  rods,  which  by  law  constitute  their  limits,  in  taking  away  or 
leaving  gravel,  trees,  stones,  and  other  objects,  which  in  their  judgment  may  be 
necessary  and  proper  to  the  grading  and  levelling  of  the  road,  in  adjusting  and 
adapting  it  to  other  roads,  bridges,  buildings,  and  the  like,  so  as  to  render  it 
most  conducive  to  the  public  uses  which  the  railway  is  intended  to  accomplish. 
Whatever  acts  therefore  are  requisite  to  the  safety  of  passengers  on  the  railway, 
to  the  agents,  servants,  and  persons  employed  by  the  company,  and  to  the  safe 
passage  of  travellers,  on  and  across  highways  and  roads  connected  with  it,  and 
which  can  be  done  within  the  limits  of  the  five  rods,  the  company  have  a  right 
under  their  act  of  incorporation  to  do.  This  is  embraced  in  the  idea  of  taking 
land  for  public  use."     See  Chicago  &  Miss.  Railw.  v.  Patchin,  16  HI.  198. 

"  People  V.  White,  11  Barb.  26 ;  United  States  v.  Harris,  1  Sumner,  21. 
And  by  the  repeal  of  a  charter  the  lands  do  not  revert  to  the  former  owner,  but 
the  franchises  of  the  corporation  are  resumed  by  the  state,  and  the  railway  re- 
mains public  property,  subject  to  the  management  and  control  of  the  state.  Erie 
&  Northeast  Railw.  v.  Casey,  26  Penn.  St.  287.  But  see  Rexford  v.  Knight, 
infra. 

'®  Hayward  v.  Mayor  of  New  York,  3  Seld.  314.  So  also  in  regard  to  lands 
appropriated  to  the  use  of  the  state  canals.  Rexford  v.  Knight,  1  Kernan,  308. 
•263 


/ 


§  69.  TITLE   ACQUIRED  BT  COMPANY.  258 

13.  In  some  of  the  cases  in  this  country,  it  has  been  licld,  that 
it  is  only  the  residuum  of  title  remaining  in  the  corporation,  at 
the  time  a  railway  is  discontinued,  that  reverts  to  the  former 
*owner  of  the  land,  and  that,  in  the  mean  time,  the  company  may 
wholly  defeat  the  reversion,  by  a  conveyance  in  fee-simple ;  and 
this  remarkable  proposition  is  distinctly  announced  in  one  case,^® 
— "  Corporations  have  a  fee-simple  for  purposes  of  alienation, 
but  they  have  only  a  determinable  fee  for  purposes  of  enjoy- 
ment." 

14.  If  it  were  said  that  corporations,  created  for  special  pur- 
poses of  intercommunication,  like  railways  and  canals,  and  invest- 
ed with  the  sovereign  prerogative  of  eminent  domain  for  these 
purposes  only,  had  no  mterest,  or  estate,  in  lands  whatever,  except 

•  for  the  mere  purpose  of  carrying  on  the  functions  with  which  they 
were  invested  by  the  state,  and  could  neither  use  nor  convey  the 
lands,  to  be  used  for  any  other  purpose  whatever,  it  would  seem 
far  more  in  accordance  with  established  principles  and  generally 
received  notions  upon  the  subject.  In  the  same  case  it  is  said, 
a  grant  to  a  corporation,  created  only  for  a  term  of  years,  pur- 
porting to  convey  a  fee,  will  not  be  construed  to  convey  only  a 
term  for  years. 

15.  In  all  these  cases  where  the  title  of  the  company  depends 
upon  conditions,  they  must  be  strictly  performed  and  strictly 
construed.*'* 

16.  But  where,  by  the  law  of  the  state,  railways,  upon  discov- 
ery that  the  title  they  are  acquiring  may  prove  defective,  have 
the  right  to  take  new  proceedings,  it  was  held,  that  the  discov- 
ery of  a  mortgage  upon  lands  will  justify  the  abandonment  of 
pending  process,  and  instituting  procedure  under  the  section 
which  allows  them  to  -extinguish  incumbrances,  on  that  por- 
tion ■  required  for  their  road.^  And  the  appraisal  of  land  sub- 
ject to  an  easement  in  the  grantor,  is  irregular,  and  no  title 
passes.^ 

17.  After  land  is  condemned  for  the  use  of  a  railway,  the  adju- 

'•  Nicol  V.  New  York  &  Erie  Railw.,  12  Barbour,  460.  See  State  v.  Rives, 
6  Ired.  297. 

"  Bangor  &  Piscataqua  Railw.  v.  Harris,  8  Shepley,  533 ;  Lovering  r.  Railw., 
8  Watts  &  Serg.  459;  Munger  v.  Tonawanda  Railw.,  4  Comst,  349;  Carr  v. 
Geor^a  Railw.  &  Banking  Co.,  1  Kelly,  624. 

*»  New  York  Central  Railw.  in  re,  20  Barbour,  419. 

"  Hill  c.  Mohawk  &  H.  RaUw.,  3  Seld.  152. 

•254 


254  EMINENT   DOMAIN.  CH.  XI. 

dicatioii  can  no  more  be  impeached  by  any  collateral  *  proceeding, 
or  by  evidence,  than  the  judgment  of  any  other  court  of  exclusive 
jurisdiction.*'^ 

And  it  was  held,  under  the  Pennsylvania  statute,^  that  after 
the  award  of  land  damages,  and  payment  of  the  money,  the 
company  become  the  owners  of  the  land,  notwithstanding  the 
pendency  of  a  certiorari  to  remove  the  case  into  the  Supreme 
Court.26 

18.  Where  the  Commonwealth  of  Pennsylvania,  in  the  construc- 
tion of  her  public  works,  acquired  the  fee-simple  of  land  taken 
therefor,  either  by  purchase  or  the  right  of  eminent  domain,  and 
the  land  was  devoted  to  the  use  of  a  highway,  a  cessation  of  that 
use  does  not  revest  the  title  in  the  former  owner.^ 

^  Hamilton  v.  Annapolis  &  Elk  Ridge  Railw.,  1  Md.  Ch.  107. 

"  Stat,  of  1829,  §  15. 

"  Schuler  v.  Northern  L.  Railw.,  3  Whar.  555 ;  ante,  §  65  ;  post,  §  73. 

^  Haldeman  v.  Penn,  R.  Co.,  60  Penn.  St.  425.  See  also  as  to  proceedings 
under  Lateral  Railroad  Acts  of  Pennsylvania,  Brown  v.  Peterson,  40  Penn.  St. 
373 ;  Boyd  v.  Negley,  id.  377  ;  Mayor,  &c.  of  Pittsburgh  v.  Penn.  R.  Co.,  48  id. 
365.  It  seems  scarcely  necessary  to  state  that  the  final  judgment  of  condemna- 
tion and  the  payment  of  the  award  vests  in  the  company  the  absolute  right  to 
use  the  land  embraced  in  the  judgment  for  all  their  legitimate  purposes.  Dodge 
V.  Burns,  6  Wise.  614;  Bums  v.  Milw.  &  Miss.  Railw.  Co.,  9  Wise.  450. 
And  the  acceptance  of  the  value  of  the  land  by  the  land-owner,  however  the 
amount  may  have  been  ascertained,  is  an  acquiescence  in  the  taking,  as  much 
as  if  he  had  conveyed  the  land  by  deed.  lb.  The  party  cannot  accept  the  amount 
of  an  award  of  damages,  and  also  appeal  therefrom.  Miss.  &  Mo.  Railw.  Co.  v. 
Byington,  14  Iowa,  572.  But  where  by  mutual  submission  the  land-owner  and 
railway  company  referred  the  amount  of  damages  to  be  paid  by  the  company  to 
arbitrators,  who  awarded  the  amount  to  be  paid  for  the  title  conveyed  simul- 
taneously, which  the  company  offered  to  do  on  their  part,  but  the  land-owner 
declined  to  perform  on  his  part,  or  to  give  any  encouragement  of  ever  doing, 
but  many  years  after  brought  an  action  against  the  company  for  not  performing 
the  award,  it  was  held  he  could  not  recover.  Smith  v.  Boston  &  Maine  Railw., 
6  AUen,  262. 

•266 


§70. 


CORPORATE  FRANCHISES  CONDEMNED. 


255 


•SECTION  VIII 


Corporate  Franchises  condemned. 


1.  Roadjirttnekue  may  be  taken. 

2.  Compenaation  mutt  be  made. 

8.  Railway  Jranchite  may  be  taken. 

4.  Rule  defined. 

6.  Conatitutionai  restrictions. 

6.  Not  well  defined. 

7.  Must  be  exclusive,  in  terms. 

8.  Legislative  discretion. 


9.   Highways  and  railways  compared. 

10.  Extent  of  eminent  domain. 

11.  Exdusiveness  of  the  grant,  a  subordinate 

firanchiae, 

12.  Legislature   cannot  create  a  franchise, 

above  the  reach  of  eminent  domain. 
18.  Legislature  may  apply  streets  in  city  to 
any  public  use. 


§  70.  1.  The  franchise  of  a  turnpike,  or  bridge,  or  other  similar 
•corporation  may  be  taken  for  a  free  road,  or  for  a  railway,  which, 
as  we  have  said,  is  an  improved  highway.^  And  it  will  make  no 
difference  that  tlie  franchise  is  situate  partly  within  the  limits  of 
different  states,  as  in  the  case  of  a  bridge  across  a  river  which 
forms  the  divisional  line  between  different  states.  But  the  pro- 
ceedings in  one  state  can  only  take  what  lies  within  its  limits.^ 

2.  But  compensation,  either  for  the  entire  franchise,  which  is 
the  more  common  course,  and  ordinarily  the  only  just  mode  of 
procedure,  or  for  the  special  injury,  must  be  made.^  But  it  is  no 
objection  to  the  validity  of  an  act  of  the  legislature,  allowing  a 
railway  to  carry  its  track  across  the  land  of  a  mill-dam  company, 
incorporated  by  the  legislature,  that  it  contains  no  express  pro- 
vision for  compensation  to  such  mill-dam  company.  This  is  im- 
plied, as  in  other  cases,  where  land  is  taken.^  And  the  same 
implication  has  been  held  to  extend  to  the  case  of  a  subsequent 
grant  of  a  railway,  which  materially  depreciated  the  use  and  value 
of  a  prior  grant  of  a  bridge.*  But  it  is  the  more  commonly  re- 
ceived opinion,  tliat  a  subsequent  grant,  which  only  incidentally 

'  Armington  r.  Barnet,  15  Vt.  745;  West  River  Bridge  v.  Dix,  6  How. 
U.  S.  507 ;  8.  c.  16  Vt.  446 ;  White  River  Turnpike  Co.  r.  Vermont  Cen- 
tral Railw.,  21  Vt.  694;  Boston  Water  Power  Co.  r.  Boston  &  Worcester 
Railw.,  23  Pick.  360 ;  Central  Bridge  Corporation  c.  City  of  Lowell,  4  Gray, 
474. 

•  Crosby  r.  Hanover,  36  N.  H.  404. 

'  West  River  Bridge  c.  Dix,  supra ;  Boston  Water  Power  Co.  r.  Boston  & 
Worcester  BmIw.,  supra.    But  see  11  Leigh,  42. 

♦  Boston  Water  Power  Co.  r.  Boston  &  Worcester  Railw.,  supra. 

»  Enfield  ToU  Bridge  Co.  t.  The  Hartford  &  New  H.  Railw.,  17  Conn.  464; 
8.  c.  17  Conn.  40. 

*266 


256  EMINENT   DOMAIN.  CH.  XI. 

operates  injuriously  to  an  earlier  one,  does  not  require  compensa- 
tion to  be  made  for  such  injury,  unless  expressly  so  provided.^ 

3.  So  also  may  the  franchise  of  one  railway  be  taken  for  the 
construction  of  another  railway .-^ 

4.  In  a  late  case  the  law  upon  this  subject  is  thus  stated,  by 
Shaw,  Ch.  J. :  "  The  court  are  of  opinion;  that  it  is  competent 
*  for  the  legislature,  under  the  right  of  eminent  domain,  to  grant 
authority  to  a  railway  corporation,  to  take  a  highway  longitudi- 
nally in  the  construction  of  their  road.  The  power  of  eminent 
domain  is  a  high  prerogative  of  sovereignty,  founded  upon  public 
exigency,  according  to  the  maxim,  Salus  reipuhlicce  lex  suprema  est, 
to  which  all  minor  considerations  must  yield,  and  which  can  only 
be  limited  by  such  exigency.  The  grant  of  land  for  one  public 
use  must  yield  to  that  of  another  more  urgent."  ^ 

5.  The  great  question  of  the  inviolability  of  corporate  franchises, 
which  we  shall  have  occasion  to  discuss  more  at  large  hereafter,^ 
is,  no  doubt,  to  a  certain  extent,  involved  here.  For,  upon  general 
principles  of  legislative  authority,  there  could  be  no  question  that 
a  corporation,  which  is  the  mere  creature  of  the  legislature,  might 
be,  at  once  and  unconditionally,  extinguished,  by  repeal  of  the 
charter.  This  is  confessedly  within  the  power  of  the  legislative 
authority  of  the  British  parliament ;  and  the  legislative  authority 
of  the  parliament  of  Great  Britain  is  no  more  extensive  than  that 
of  the  legislatures  of  the  American  states,  aside  from  restrictions 
contained  in  the  constitutions  of  the  United  States,  and  of  the 
several  states.^'' 

6.  The  only  limitation  upon  this  power  over  private  corpora- 
tions, in  most  of  the  states,  perhaps  in  all,  is  found  in  that  pro- 
vision of  the  United  States  constitution  which  prohibits  the  legis- 
latures of  the  several  states  from  passing  any  law  impairing  tlie 

*  White  River  Turnpike  Co.  r.  Vermont  Central  Railw.,  21  Vt.  59-i. 

'  Grier,  J.,  in  Richmond  Railw.  v.  Louisa  Railw.,  13  How.  81,  82 ;  Newcastle 
&  R.  Railw.  r.  P.  &  Ind.  Railw.,  3  Ind.  464. 

*  Springfield  v.  Conn.  River  Railw.,  4  Cush.  63.  See  also  upon  the  general 
subject,  Chesapeake  &  Ohio  Canal  Co.  v  Baltimore  and  Ohio  Railw.,  4  Gill  & 
Johns.  1;  Forward  c.  Hampshire  &  Hampden  Canal  Co.,  22  Pick.  462,  where 
the  prior  company  is  held  bound  by  acquiescence  in  the  transfer  of  its  franchises 
to  another  company.  Irvin  v.  Turnpike  Co.,  2  Penn.  466 ;  Rogers  v.  Bradshaw, 
20  Johns.  735 ;  Backus  v.  Lebanon,  11  N.  H.  19. 

»  Post,  §  231. 

>»  Dartmouth  College  v.  Woodward,  4  Wheat.  618. 
*257 


§  70.  CORPORATE  FRANCHISES  CONDEMNED.  267 

obligation  of  contracts.  And  the  proper  limits  of  this  restriction, 
in  regard  to  corporations,  is  not  altogether  well  defined,  in  the 
different  opinions  of  the  several  judges  of  the  supreme  national 
tribunal  upon  this  subject ;  nor  is  there  any  thing  approaching 
unanimity  among  them. 

7.  But  it  may  perhaps  be  regarded  as  settled,  for  the  time  at 
least,  that  where  exclusive  privileges  are  conferred  upon  private 
•corporations,  by  express  words,  or  necessary  implication,  the 
grant  is  irrevocable  and  inviolable.  But  that  the  grant  of  any 
privilege  or  franchise  carries  no  implied  exclusion,  of  similar 
privileges  and  franchises  being  conferred  upon  other  persons,  natu- 
ral or  corporate.^ 

8.  The  legislature  may  in  all  instances  determine,  when  and 
where  the  public  necessities  require  additional  facilities,  of  a 
similar  or  analogous  character,  where  the  former  grant  is  not 
exclusive." 

9.  And  in  some  cases  of  exclusive  and  perpetual  grants,  for 
common  highways  or  bridges,  it  has  been  held,  that  this  did  not 
preclude  the  legislature  from  granting  railways  and  railway  bridges 
within  the  limits  of  the  former  grant.^  In  the  last  case  referred 
to,  the  court  held,  that  a  perpetual  grant  of  a  toll-bridge  across 
the  Cape  Fear  River,  which  in  terms  subjected  all  persons  to  a 
penalty  for  transporting  persons  or  property  across  that  river  in 
any  other  manner,  within  six  miles  of  the  plaintiff's  bridge,  would 
not  subject  the  defendant's  company  to  the  penalty  for  carrying 
persons  and  property  across  the  river,  upon  their  road,  by  means 
of  a  bridge  erected  within  the  six  miles ;  that  the  grant  was  in- 
tended to  be  exclusive  only,  as  to  all  modes  of  travel  and  trans- 
portation then  known,  but  not  to  exclude  all  improvements  thereon, 
in  all  future  time.^ 

10.  But  the  exclusive  character  of  a  corporate  grant  will  not 
preclude  the  power  to  take  the  franchise,  upon  makhig  compen- 

"  Charles  River  Bridge  r.  Warren  Bridge,  11  Pet.  420;  Thorpe  v.  Rut.  & 
Bur.  Railw.,  27  Vt.  140;  Boston  &  Lowell  Railw.  v.  Salem  &  Lowell  Railw., 
2  Gray,  1;  Mohawk  Bridge  Co.  v.  Utica  &  Sch.  Railw.,  6  Paige,  654;  Hudson 
&  Delaware  Canal  Co.  v.  New  York  &  Erie  Railw.,  9  Paige,  323. 

"  McRee  c.  Wilmington  &  Raleigh  Railw.,  2  Jones  Law,  186.  But  see 
Enfield  Bridge  Co.  v.  Hartford  &  New  H.  Railw.,  17  Conn.  40,  454. 

'^  But  this  distinction  is  certainly  not  attempted  to  be  maintained,  in  the 
majority  of  the  cases  upon  this  subject,  either  in  England  or  in  this  country. 
Post,  §  231  d  seq. 

17  •258 


258  EMIMENT   DOMAIN.  CH.  XI. 

sation,  under  the  right  of  eminent  domain,  the  stipulation  in  the 
charter,  that  the  grant  shall  be  exclusive  of  all  others,  beir.g  sub- 
ject to  the  same  law  as  other  property,  whether  in  possession  or 
action ;  all  which  is  confessedly  subject  to  the  exercise  of  the  right 
of  eminent  domain,  by  the  sovereign." 

*  11.  It  has  sometimes  been  characterized,  as  a  refinement  or 
an  invasion,  to  identify  the  covenant,  in  the  charter  of  a  private 
corporation,  that  the  grant  shall  be  exclusive  of  all  others,  with 
the  charter  itself,  and  thus  subject  it  to  the  law  of  eminent  do- 
main. But  it  seems  to  us  entirely  a  sound  view,  in  all  cases 
where  the  whole  franchise  of  the  corporation  is  proposed  to  be 
taken,  and  that  the  charge  of  refinement  is  rather  to  be  laid  at 
the  door  of  such  as  attempt  to  raise  a  distinction  between  the 
exclusiveness  of  the  grant  and  the  grant  itself,  in  order  to  pre- 
serve the  inviolability  of  the  former,  which  is  the  lesser  and  sub- 
ordinate franchise,  when  the  latter,  and  paramount,  and  vital 
franchise  of  a  corporation  is  confessedly  subject  to  the  law  of 
eminent  domain. ^^ 

12.  It  is  intimated  in  "West  River  Bridge  Company  v.  Dix,  by 
Woodbury,  J.,  that  if  the  charter  of  the  corporation  contained  an 
express  stipulation  against  the  exercise  of  the  right  of  eminent 
domain  upon  the  corporation,  this  might  secure  the  franchise. 
But  this  is  certainly  not  the  prevailing  opinion. ^^ 

"  Enfield  ToU  Bridge  Co.  v.  Hartford  &  New  Haven  Railw.,  17  Conn. 
40  and  454.  This  doctrine  has  been  so  repeatedly  asserted  in  all  the  courts  of 
the  country,  that  it  seems  scarcely  requisite  to  multiply  references.  And  the 
right  to  take  the  franchise  of  another  corporation,  by  parity  of  reason,  carries 
the  right  to  impair  another  franchise  to  any  extent,  upon  making  indemnity. 
Matter  of  Kerr.  42  Barb.  119. 

'*  West  River  Bridge  Co.  v.  Dix,  16  Vt.  446;  8.  c.  6  Howard  (U.  S.), 
507,  539,  Opinion  of  Woodbury,  J. :  who  argues  that  it  is  difficult  to  compre- 
hend why  the  exclusiveness  of  the  grant  to  a  private  corporation  should,  upon 
principle,  be  any  more  inviolable  by  legislative  authority  than  any  other  part 
of  the  corporate  franchise.  It  is  only  as  property  that  it  is  valuable,  or  that 
it  is  protected  at  all.  And  all  property  is,  in  cases  of  proper  necessity,  subject 
to  the  law  of  eminent  domain.  It  is  very  questionable  whether  this  law  should 
be  held  to  extend  to  those  portions  of  public  works  which  may  always  be  obtained 
in  the  market,  and  where,  by  consequence,  there  is  no  practical  necessity. 

*^  In  regard  to  the  right  of  eminent  domain,  it  seems  now  to  be  conceded,  that 
no  legislature,  upon  any  consideration  or  pretence  whatever,  can  deprive  a  future 
legislature  of  its  exercise,  in  the  absolute  annihilation  of  corporate  franchises, 
upon  just  and  adequate  compensation.  In  Backus  v.  Lebanon,  UN.  Hamp. 
19,  Parker,  Ch.  J.,  says:  "Had  the  charter  contained  an  express  stipulation, 
•  259 


§  70.  CORPORATE  FRANCHISES  CONDEMNED.  259 

*  13.  The  fee  of  the  streets  of  a  city,  where  it  has  been  acquired 
by  the  municipality  under  the  right  of  eminent  domain,  *  becomes 

that  the  property  of  the  corporation  should  never  be  taken,  in  the  exercise  of 
the  power  of  eminent  domain,  the  question  would  at  once  have  arisen,  whether 
it  was  competent  for  any  legislature  to  make  a  contract  of  that  character; 
whether  any  legislature  has  authority,  by  contract,  to  lay  restrictions  upon  this 
power."  And  reference  is  here  made  to  Piscataqua  Bridge  v.  New  Hampshire 
Bridge,  7  N.  Hamp.  35,  69,  as  containing  the  views  of  the  court  upon  the 
subject.  See  also  Brewster  v.  Hough,  10  N.  Hamp.  138 ;  Northern  Kailw.  v. 
Concord  &  Claremont  Railw.,  7  Foster,  183,  195. 

The  remarks  of  the  late  Professor  Greenleaf,  in  his  edition  of  Cruise,  vol.  2, 
tit.  27,  §  29,  in  note,  p.  67,  68,  upon  this  important  subject,  seem  altogether 
worthy  of  commendation,  and  their  insertion  here  will  require  no  apology.  "  But 
in  regard  to  the  position,  that  the  grant  of  the  franchise  of  a  ferry,  bridge,  turn- 
pike, or  railroad,  is  in  it^  nature  exclusive,  so  that  the  state  cannot  interfere  with 
it  by  the  creation  of  another  similar  franchise,  tending  materially  to  impair  its 
value,  it  is  with  great  deference  submitted,  that  an  important  distinction  should 
be  observed  between  those  powers  of  government  which  are  essential  attributes 
of  sovereignty,  indispensable  to  be  always  preserved  in  full  vigor,  such  as  the 
power  to  create  revenues  for  public  purposes,  to  provide  for  the  common  defence, 
to  provide  safe  and  convenient  ways  for  the  public  necessity  and  convenience, 
and  to  take  private  property  for  public  uses,  and  the  like,  and  those  powers 
which  are  not  thus  essential,  such  as  the  power  to  alienate  the  lands  and  other 
property  of  the  state,  and  to  make  contracts  of  service,  or  of  purchase  and  sale, 
or  the  like.  Powers  of  the  former  class  are  essential  to  the  constitution  of 
society,  as  without  them  no  political  community  can  well  exist ;  and  necessity 
requires  that  they  should  continue  unimpaired.  They  are  intrusted  to  the  legis- 
lature to  be  exercised,  not  to  be  bartered  away ;  and  it  is  indispensable  that 
each  legislature  should  assemble  with  the  same  measure  of  sovereign  power  which 
was  held  by  its  predecessors.  Any  act  of  the  legislature,  disabling  itself  from 
the  future  exercise  of  powers  intrusted  to  it  for  the  public  good,  must  be  void, 
being  in  effect  a  covenant  to  desert  its  paramount  duty  to  the  whole  people.  It  is 
therefore  deemed  not  competent  for  a  legislature  to  covenant,  that  it  will  not 
under  any  circumstances  open  another  avenue  for  the  public  travel  within  certain 
limits,  or  a  certain  term  of  time  ;  such  covenant  being  an  alienation  of  sovereign 
powers  and  a  violation  of  public  duty. 

"  But  if,  in  order  to  provide  suitable  public  ways,  the  state  has  availed  itself 
of  private  capital,  and  secured  its  reimbursement  by  the  grant  of  a  charter  of  in- 
corporation, with  the  right  to  take  tolls  for  a  limited  period ;  and  the  public  ne- 
cessity should  afterwards  require  the  creation  of  another  way,  the  opening  of 
which  would  diminish  the  profits  of  the  first,  and  so  prevent  the  corporators  from 
receiving  the  compensation  intended  to  be  secured  to  them;  the  state,  thus 
sacrificing  the  private  property  of  the  corporation  for  public  uses,  would  un- 
questionably be  bound,  as  a  sacred  moral  duty,  to  make  full  indemnity  therefor 
in  some  other  mode. 

"  All  those  grants  of  franchises,  therefore,  which  are  in  derogation  of  the 
essential  attributes  of  sovereignty  above  mentioned,  are  to  be  construed  strictly ; 

•  260,  261 


260  EMINENT  DOMAIN.  CH.  XI. 

a  public  trust  for  general  public  purposes,  and  is  under  the  unqual- 
ified control  of  the  legislature,  and  any  legislative  appropi  iation 
of  it  to  public  use  is  not  to  be  regarded  as  the  appropriation  of 
private  property,  so  as  to  require  compensation  to  the  city  or 
municipality  to  render  it  constitutionaLi'     The  mere  possibility 

and  nothing  is  to  be  taken  by  implication.  It  was  on  this  ground  that  .the  case 
of  the  Warren  Bridge  was  decided.  The  legislature  had  granted  a  charter  for 
the  building  of  the  Charles  River  Bridge,  with  the  right  of  receiving  tolls,  and 
upwards  of  forty  years  afterwards,  the  public  exigency  requiring  another  and 
free  avenue  between  the  same  places,  an  act  was  passed  authorizing  the  erection 
of  the  Warren  Bridge,  a  few  rods  from  the  former,  the  opening  of  which,  as  a 
natural  consequence,  reduced  the  tolls  of  the  former  to  a  very  small  amount.  And 
this  act  was  held  to  be  not  unconstitutional.  Charles  River  Bridge  r.  Warren 
Bridge,  11  Peters,  420,  cited,  and  its  reasoning  affirmed,  in  Butler  v.  Pennsyl- 
vania, 10  How.  (U.  S.)  402;  Woodfolk  v.  Nashville,  &c.  Railw.  Co.,  1  Am. 
L.  Reg.  520.  [See  also  Matter  of  Hamilton  Avenue,  14  Barb.  Sup.  Ct.  405 ; 
Illinois  and  Michigan  Canal  v.  Chicago  and  R.  I.  Railw.  Co.,  14  111.  314; 
Rundle  v.  The  Delaware  and  R.  Canal  Co.,  14  How.  (U.  S.)  80;  13  ib.  71 ;  10 
ib.  611,  541 ;  Shorter  v.  Smith,  9  Ga.  517.] 

"  The  learned  chancellor  Kent,  in  a  note  appended  to  the  case  of  11  Pet.  420, 
deeply  regrets  that  decision,  concurring  in  the  opinion  of  Mr.  Justice  Story,  who 
dissented  from  it.  But  against  the  weight  of  the  opinion  of  this  great  judge  may 
be  placed  that  of  the  late  Chief  Justice  Marshall,  the  writer  having  been  in- 
formed, as  a  fact  within  the  personal  knowledge  of  the  informant,  that  the  chief 
justice  held  the  charter  of  Warren  Bridge  constitutional,  upon  the  first  argument 
of  the  cause ;  and  that  it  was  on  account  of  this  division  of  the  bench  that  a 
second  argument  was  ordered,  which  he  did  not  live  to  hear.  And  it  is  worthy 
of  notice,  in  this  connection,  that  Mr.  Justice  Story,  in  delivering  his  dissenting 
opinion  in  the  same  term,  in  the  case  of  Briscoe  v.  The  Bank  of  the  Common- 
wealth of  Kentucky,  11  Pet.  328,  supports  it  by  referring  to  a  similar  opinion 
held  by  the  late  chief  justice,  upon  the  former  argument  of  that  cause ;  while  in 
the  case  of  Warren  Bridge  no  such  support  is  invoked ;  doubtless  for  the  reason 
that  it  could  not  be  had. 

"  The  state  being  bound  in  good  faith,  as  already  stated,  to  make  full  and 
complete  indemnity  to  individuals,  whose  private  rights,  in  the  exercise  of  its 
eminent  domain,  it  has  been  obliged  to  sacrifice  for  the  general  good,  the  ques- 
tion is  reduced  to  the  mode  of  compensation ;  whether  actual  payment  of  the 
damages  must  precede  or  accompany  the  act  of  the  state ;  or  whether  the  indi- 
vidual ought  to  have  at  least  a  compulsory  remedy  at  law ;  or  whether  the  pledge 
of  public  faith  is  a  sufficient  security.  On  this  subject  various  opinions  are  held. 
See  2  Kent,  Comm.  338-440,  and  note  (c)  on  p.  339,  5th  ed. ;  11  Pet.  471,  472, 
642,  643 ;  The  People  v.  White,  4  Law  Rep.  (n.  s.)  177."  See  also,  to  the  same 
effect,  the  opinion  of  Mr.  Justice  Orier,  of  the  United  States  Circuit  Court,  in 
Milnor  v.  The  New  J.  Railw.,  6  Law  Reg.  6,  7 ;  and  Crosby  v.  Hanover,  20  Law 
Rep.  646 ;  8.  c.  36  N.  H.  404. 

"  People  V.  Kerr,  27  N.  Y.  188.  See  also  Philadelphia  &  Reading  RaUw.  v. 
City  of  Phikdelphia,  47  Penn.  St.  826. 


§71. 


COMPENSATION.  —  MODE   OP   ESTIMATING. 


261 


of  reverter  to  the  original  owner,  or  his  heirs  or  *  grantees,  is  not 
regarded  in  such  cases  as  any  appreciable  interest  requiring  to  be 
compensated.^" 

SECTION  IX. 

Compensation.  —  Mode  of  Estimating. 


1.  General  inquiry  simple. 

2.  Remote  damage  and  benefits  not  to  be  con' 

sidered. 
8.    General  rule  of  estimating  compensation. 
4.   Prospective  damages  assessed. 
6.   In  some  states  txdm  "  in  moneif  "  it  re- 

quired. 
6,  7.  Damage  and  ben^ts  cannot  be  eonsid- 

ered  in  such  cases. 

8.  Rule  of  the  English  statute. 

9.  Farm  accommodations. 

10.   Benefits  and  damage,  if  required,  must 
be  stated. 


n.  10.    Course  of  the  trial  in  estimating  land 
damages. 

11.  Items  of  damages  not  indispensable  to  be 

stated. 

12.  In  contracts  for  land  statutory  privileges 

must  be  stated  to  be  secured. 
18.    Questions  of  doubt  referred  to  experts. 
14.    Speci(d  provisions  as  to  crossing  streets 

only  permissive. 
16.  In  an  award  of  farm  accommodations, 

time  of  the  essence  of  the  award. 


§  71.  1.  The  inquiry  in  regard  to  what  compensation  shall  be 
made,  for  land  taken  for  public  works,  would,  on  the  face  of  it, 
seem  to  be  a  very  simple  one.  One  would  naturally  suppose  the 
value  of  the  land  taken  or  the  damage  sustained,  to  be  the  fair 
measure  of  compensation,  and  that  there  could  be  no  serious  diffi- 
culty in  ascertaining  the  amount. 

2.  But  in  consequence  of  numerous  ingenious  speculations  in 
regard  to  possible  advantages  and  disadvantages  arising  from  the 
public  works,  for  which  lands  are  taken,  the  whole  subject  has 
become,  in  this  country  especially,  involved  in  more  or  less  uncer- 
tainty. All  the  cases  seem  to  concur  in  excluding  mere  general 
and  public  benefit,  in  which  the  owner  of  land  shares  in  common 
with  the  rest  of  the  inhabitants  of  the  vicinity,  from  being  taken 
into  consideration  in  estimating  compensation. 

3.  It  has  been  said,  the  appraisers  are  not  to  go  into  conjectural 
and  speculative  estimations  of  consequential  damages,^  but  *  con- 

'  Meachatn  v.  Fitchburg  Railw.,  4  Cush.  291 ;  Upton  r.  South  Reading  Branch 
Railw.  Co.,  8  Cush.  600 ;  Albany  N.  Railw.  Co.  ».  Lansing,  16  Barb.  68 ;  Canan- 
daigua  &  N.  Railw.  v.  Payne,  16  Barb.  273 ;  Greenville  &  C.  Railw.  Co.  r. 
Partlow,  5  Rich.  428;  White  r.  Charlotte  &  S.  C.  Railw.  Co.,  6  Rich.  47; 
A.  &  S.  Railw  Co.  V.  Carpenter,  14  Illinois,  190;  Symonds  v.  The  City  of  Cin- 
cinnati,  14  Ohio,  147 ;  Brown  v.  Cincinnati,  id.  541 ;   Mclntire  v.  State,  6 

•  262,  263 


262  EMINENT   DOMAIN.  CH.  XI. 

fine  themselves  to  estimating  the  value  of  the  land  taken  to  the 
owner.  This  is  most  readily  and  fairly  ascertained,  by  determin- 
ing the  value  of  the  whole  land,  without  the  railway,  and  of  the 
portion  remaining  after  the  railway  is  built.  The  difference  is  the 
true  compensation  to  which  the  party  is  entitled.^ 

4.  But  the  appraisers  are  to  assess  all  the  damages,  present  and 
prospective,  to  which  the  party  will  ever  be  entitled,  by  the  prudent 
construction  and  operation  of  the  road.^ 

Blackford,  384 ;  State  v.  Digby,  5  Blackf.  543 ;  James  River  &  Kanawha  Co. 
V.  Turner,  9  Leigh,  313 ;  SchuylkiU  Co.  v.  Thobum,  7  Serg.  &  R.  411.  A  jury 
may  take  into  the  account,  in  estimating  the  damages,  the  effect  the  construction 
of  the  railway  will  have  in  diminishing  deposits  of  sediment,  which  had  been 
made  by  a  river,  in  high  water  flowing  upon  the  land  and  greatly  enriching  it. 
Concord  Railw.  v.  Greeley,  3  Foster,  237.  And  the  deterioration  of  the  adja- 
cent parts  of  the  same  land,  (but  which  are  not  taken,)  either  for  agriculture,  or 
sale  for  building  lots  ;  by  risk  from  fire,  care  of  family  and  stock,  inconvenience 
caused  by  embankments,  excavations,  and  obstructions  to  the  free  use  of  build- 
ings, is  to  be  taken  into  the  account,  in  estimating  damages.  Somerville  &  E. 
Railw.  V.  Doughty,  2  Zab.  495.  The  increase  or  decrease  in  the  price  of  the 
remaining  land,  and  the  expense  of  fencing,  are  to  be  taken  into  the  accoimt,  in 
assessing  compensation.  Greenville  &  Columbia  Railw.  v.  Partlow,  5  Rich.  428. 
The  value  <>('  the  land  taken,  considering  its  relation  to  the  land  from  which  it  is 
severed,  is  to  be  given,  and  such  further  sum  as  the  incidental  injury  to  the  land 
not  taken,  from  the  construction  of  the  road,  exceeds  the  incidental  benefits. 
Nashville  Railw.  v.  Dickerson,  17  B.  Mon.  173, 180.  Louisville  &  Nash.  Railw. 
V.  Thompson,  18  id.  735. 

*  Troy  &  Boston  Railw.  v.  Lee,  13  Barb.  169,  171 ;  Matter  of  F.  Street,  17 
Wend.  649 ;  Canal  Co.  v.  Archer,  9  Gill  &  J.  480 ;  Parks  r.  City  of  Boston,  15 
Pick.  198 ;  Somerville  Railw.  v.  Doughty,  2  Zab.  495.  But  no  account  is  to  be 
taken,  in  estimating  land  damages,  of  the  benefit  the  railway  may  have  been 
to  other  property  of  the  plaintiff,  disconnected  with  that  taken.  Railw.  ».  Gil- 
son,  8  Watts,  243 ;  but  see  Columbus,  P.  &  I.  Railw.  v.  Simpson,  4  Law  Reg. 
696  ;  s.  c.  5  Ohio  N.  S.  251 ;  Rochester  &  Sy.  Railw.  ».  Budlong,  6  How.  Pr.  467  ; 
Sater  v.  B.  &  Mt.  PI.  Railw.,  1  Clarke,  386.  The  value  of  the  land,  at  the  time 
of  trial,  or  at  any  time  subsequent  to  the  construction  of  the  work,  cannot  be 
referred  to  in  determining  the  benefits  conferred  upon  that  portion  of  the  land 
not  taken.     Ind.  Central  R.  v.  Hunter,  8  Lid.  74. 

^  Dearborn  v.  Boston,  Concord,  &  Montreal  Railw.  Co.,  4  Foster,  179.  Clark 
V.  Vt.  &  Canada  Railw.,  28  Vt.  103.  The  expense  of  fencing  is  to  be  included 
in  the  estimate  of  land  damages,  Winona  &  St.  Peter  Railw.  Co.  v.  Denman, 
10  Minn.  267.  The  matter  of  estimating  land  damages  to  the  owner  of  a  farm, 
a  portion  of  which  is  taken  for  the  construction  of  a  railway,  is  discussed  very 
much  in  detail  and  with  a  very  considerate  regard  to  the  equitable  interests  of 
all  parties  in  the  case  of  Robbins  ».  Milw.  &  Hor.  Railw.  Co.,  6  Wis.  636. 
Damages  done  to  mill  property  in  lessening  the  advantages  of  the  water-power. 


§  71.  COMPENSATION.  —  MODE  OF   ESTIlfATTNO.  263 

*  5.  Some  of  the  state  constitutions  in  terms  provide,  that  com- 
pensation for  private  property,  taken  for  public  use,  shall  be  made 
"  in  money,"  and  many  eminent  jurists  have  strenuously  main- 
tained that  compensation,  to  the  extent  of  the  value  of  the  land 
taken,  must  always  be  made  in  money,  and  that  no  deduction  can 
be  made,  on  account  of  any  advantage  which  is  likely  to  accrue  to 
other  property  of  the  owner,  by  reason  of  the  public  work,  for 
which  the  property  is  taken.*  Such  accidental  advantages  to  the 
portion  of  land  not  taken  as  drainage  by  means  of  cuts  in  the  soil 
from  grading  the  railway  cannot  be  taken  into  account.^ 

6.  In  a  late  case  in  Vermont  the  court  held,  that  taking  land 
for  a  public  highway  is  not  appropriating  it  to  public  use,  within 
the  meaning  of  the  constitution  of  that  state,  which  requires  com- 
pensation in  such  cases  to  be  made  "  in  money,"  but  that  this 
provision  only  applies,  where  the  fee  of  the  land  is  taken ;  and 
that  where  an  easement  only  is  taken  for  the  purpose  of  a  high- 
way, and  the  remaining  land  is  worth  more  than  the  whole  *  was 
before  the  laying  out  of  the  road,  the  party  is  entitled  to  no  com- 
pensation.* 

present  and  prospective,  should  be  taken  into  the  account  in  estimating  land 
damages.     Dorian  r.  E.  Br.  &  Waynesburg  Railw.  Co.  46  Penn.  St.  620. 

*  2  Kent,  Coram.  7th  ed.  394  and  note ;  Jacob  r.  The  City  of  Louisville,  9 
Dana,  114;  The  People  v.  The  Mayor  of  Brooklyn,  6  Barb.  (S.  C.)  209.  But 
this  last  case  was  subsequently  reversed  in  the  Court  of  Appeals.  4  Comst. 
419 ;  Rice  c.  Turnpike  Co.,  7  Dana,  81 ;  Woodfolk  v.  N.  &  C.  Railw.,  2  Swan, 
422.  In  this  case,  it  was  said,  benefits  to  the  remaining  land  may  be  set  off 
against  injury,  but  the  party  cannot  be  compelled  to  apply  such  benefits  towards 
the  price  of  his  land.  Railway  r.  Lagarde,  10  Louis.  Ann.  150.  Under  such  a 
provision  in  the  constitution  of  Ohio,  it  was  held,  that  in  assessing  damages,  the 
jury  had  no  right  to  take  into  consideration  the  fact,  that  the  value  of  the  land 
had  been  increased  by  the  proposal,  or  construction  of  the  work.  Giesy  v.  Cin. 
Wil.  &  Zanesv.  Railw.,  4  Ohio  N.  S.  308.  General  benefits  resulting  from  the 
erection  of  a  railway,  to  all  who  own  property  in  the  vicinity,  are  not  to  be  taken 
into  the  account,  in  estimating  land  damages ;  and  it  was  doubted  if  special 
benefits,  accruing  to  the  remainder  of  the  land,  could  be  so  taken  into  account. 
Little  Miami  Railw.  r.  CoUett,  6  Ohio  N.  S.  182.  Pacific  Railw.  v.  Chrystal,  25 
Mo.  644. 

*  Evansville  &  C.  Railw.  v.  Fitzpatrick,  10  Ind.  120;  Same  r.  Cochran,  id. 
660. 

*  Livermorc  v.  Jamaica,  23  Vt.  361.  This  case  has  been  questioned.  1 
Bennett's  Shelford  on  Railways,  441.  See  also  Reitcnbaugh  r.  Chester  Valley 
Railw.,  21  Penn.  St.  100.  CoiUra,  McMahon  ».  Cincinnati  Railw.,  5  Ind.  413; 
3  id.  543.  Benefits  arising  to  the  owner  of  the  land  "  by  the  construction  of  the 
road"  held  not  to  have  reference  to  the  whole  work,  but  to  tliat  particular 

•  264,  265 


264  EMINENT  DOMAIN.  CH.  XI. 

7.  This  is  certainly  not  in  conformity  with  the  general  course 
of  decision  upon  this  subject.  It  is  the  only  case,  probably,  where 
an  attempt  is  made  to  escape  from  such  a  constitutional  provision, 
in  this  manner.  Some  will  doubtless  regard  it  as  too  refined  to 
be  sound.  And  if  it  is  true,  as  is  sometimes  claimed,  that  the 
legislature  had  no  right  to  resume  the  fee  of  land  for  highways 
and  railways,  such  a  constitutional  provision,  with  such  a  construc- 
tion, would  have  little  application  to  the  taking  of  land  for  such 
uses.'^ 

portion  which  runs  through  the  party's  land.  Milwaukee  &  "Mis.  R.  v.  Eble,  4 
Chand.  72.  An  act  which  provides  for  setting  off  the  advantages  to  other  land 
against  the  value  of  the  land  taken,  is  not,  on  that  account,  unconstitutional. 
McMasters  r.  Commonwealth,  3  Watts,  292.  But  it  has  very  often  been  held, 
that  such  accidental  advantages,  especially  where  they  are  not  peculiar  to  the 
particular  land-owner,  cannot  be  set  off  against  the  specific  value  of  the  land 
taken.  State  v.  Miller,  3  Zab.  383 ;  Woodfolk  v.  Nash.  &  Ch.  Raflw.,  2  Swan, 
422 ;  Hill  v.  M.  &  H.  Railw.,  5  Denio,  206 ;  Keasy  v.  Louisville,  4  Dana,  154 ; 
Sutton  V.  Louisville,  5  Dana,  28;  People  r.  Mayor  of  B.,  6  Barb.  209.  But 
many  cases  hold  the  contrary.  People  v.  Mayor  of  BrookljTi,  4  Comst.  419, 
where  s.  c.  6  Barb.  209,  is  reversed;  Rexford  v.  Knight,  15  Barb.  627.  But 
where  profits  are  to  be  taken  into  the  account,  the  title  to  have  them  considered 
obtains,  at  the  time  the  servitude  is  located.  Palmer  Co.  r.  FerriU,  17  Pick.  58. 
Benefits  by  increase  of  business  and  population,  markets,  schools,  stores,  and 
other  like  improvements,  cannot  be  considered,  in  estimating  damages,  for  flow- 
ing land,  by  a  miU-dam.     lb. 

Li  a  recent  case  in  if  ew  Hampshire,  petition  of  the  Mount  Washington  Road 
Company,  35  N.  H.  134,  it  was  decided,  that  in  assessing  damages  for  land  taken 
for  a  turnpike,  or  free  highway,  compensation  is  to  be  given  for  the  actual  value 
of  the  land  taken,  without  regard  to  any  speculative  advantages  or  disadvantages 
to  the  owner  from  the  making  of  the  highway.  See  Cushman  v.  Smith,  34  Maine, 
247.  But  in  Indiana  Central  Railw.  v.  Hunter,  8  Lid.  74,  the  same  rule  is 
adopted,  as  in  the  case  first  cited  in  this  note.  And  in  Whitman  f.  Boston  & 
Maine  RaUw.,  7  Allen,  313,  it  was  decided,  that  in  estimating  the  damages  to 
land  by  reason  of  the  location  of  a  railway  across  it,  and  the  filling  up  of  a  canal 
in  which  the  owner  of  the  lot  had  a  privilege,  if  the  value  of  the  lot  is  so  en- 
hanced, that  what  remained  was  worth  more  than  the  whole  lot  was  before,  the 
owner  has  no  claim  for  damages.  S.  P.  in  the  s.  c,  3  Allen,  133.  But  the 
benefits  to  be  deducted  from  the  value  of  land  taken  must  accrue  to  the  remain- 
ing land,  and  not  to  all  land  in  the  same  vicinity.  Winona  &  St.  Peter  Railw.  v. 
Waldron,  11  Minn.  515. 

'  Hatch  r.  Vermont  Central  Railw.  Co.,  25  Vt.  49 ;  Reitenbaugh  v.  Chester 
Valley  Railw.,  21  Penn.  St.  100.  Contra,  Little  Miami  Railw.  r.  Naylor,  2  Ohio 
N.  S.  235.  And  in  a  case  in  Mississippi,  Brown  r.  Beattj',  34  Miss.  227, 
where  the  constitution  required  "compensation  first  to  be  made"  for  land  taken, 
it  was  held  the  provision  secured  to  the  owner  the  right  to  receive  the  cash  value 
in  money,  and,  in  addition,  full  indemnity  for  all  damages  by  means  of  severance. 


§71.  COMPENSATION,  —  MODE    OP  ESTIMATING.  265 

*  8.  The  English  statute  provides,  that,  in  estimating  compen- 
sation for  land  damages  "  regard  shall  be  had  not  only  to  the  land 
taken,  but  also  to  damage,  by  reason  of  severance  from  other 
lands,  or  otherwise  injuriously  affecting  sucli  lands."  There  are, 
too,  in  the  English  statute,  provisions  for  compensation  to  sundry 
subordinate  interests  in  lands,  as  to  lessees  for  years,  and  to 
tenants  from  year  to  year.  And  also  in  regard  to  mines.  The 
company  are  not  entitled  to  mines  or  minerals  under  lands,  except 
such  parts  as  shall  be  necessary  to  use  in  the  construction  of  the 
road,  unless  expressly  purchased.  It  has  been  held  that  stone  got 
from  quarries  are  minerals,®  and  that  mijies  are  quarries,  or  places 
where  any  thing  is  dug.*  By  the  English  statute,  *  the  company 
may  remove  or  displace  gas  or  water  pipes,  makhig  compensatiou 
to  all  parties  injured. 

9.  And  where  commissioners  appraise  the  damages  upon  the 
basis  of  the  railway  making  and  maintaining  certain  works  for  the 
accommodation  of  the  land-owner,  as  a  culvert  and  waste-way,  etc., 
it  was  held  this  portion  of  the  award  was  not  void,  but  if  acquiesced 
in  by  the  company,  and  the  land  taken,  and  compensation  made 

and  that  no  enhanced  value  of  the  portion  of  land  not  taken  could  be  taken  into 
the  account.     See  also  Branson  v.  Philadelphia,  47  Penn.  St.  329. 

Ilenrj-  r.  Dubuque  &  Pacific  Railw.  Co.,  10  Iowa,  540.  It  is  said  in  one  case, 
what  is  verj-  nearly  a  truism,  that  corporate  existence  and  the  right  of  eminent 
domain  can  only  be  derived  from  legislative  grant,  and  that  both  must  be  shown 
to  justify  talcing  lands  compulsorily,  and  also  compliance  with  all  conditions 
of  the  grant,  Atkinson  v.  Marietta  &  Cin,  Railw.  Co.,  16  Ohio  N.  S.  21.  Post, 
§76. 

The  dedication  of  land  to  the  use  of  a  street  will  not  authorize  the  legislature 
to  appropriate  it  to  the  use  of  a  railway  track  without  compensation  to  the 
owner,  and,  if  this  is  attempted,  it  may  be  restrained  by  injunction,  Schurmeier 
e.  St,  Paul  &  P.  Railw.,  10  Minn.  82. 

'  Micklethwait  v.  Winter,  6  Exch,  644 ;  8,  c,  6  Eng.  L.  &  Eq.  626. 

•  Hodges  on  Railways,  288,  note  (y) .  ■  The  more  common  mode  of  estimating 
land  damages  unquestionably  is,  to  give  the  company  the  specific  benefit  caused 
to  land,  a  portion  of  which  is  taken,  in  the  enhancing  the  value  of  the  same,  and 
only  to  allow  the  land-owner  such  a  sum  as  will  leave  him  as  well  off  in  regard 
to  the  particular  land  as  if  the  works  had  not  been  built,  or  his  land  taken.  This 
is  done  by  giving  the  land-owner  a  sum  equal  to  the  difference  between  what  the 
whole  land  would  have  sold  for  before  the  road  was  built,  and  what  the  remain- 
der will  sell  for  after  the  construction.  Harvey  v.  Lack,  &  Bloomsburg  Railw,, 
47  Penn.  St.  428.  But  this  rule  will,  in  many  cases,  prove  entirely  inadequate 
and  unsatisfactory,  and  where  it  has  been  adopted  it  may  be  regarded  as  only 
extending  to  other  cases  of  a  very  similar  character.  Win.  &  St,  Peters'  Railw., 
V.  Denman,  10  Minn,  267. 

•  266,  267 


266  EMINENT   DOMAIN.  CH.  XI. 

upon  that  basis,  they  thereby  become  bound  by  its  provisions.^'' 
But  where  it  was  referred  to  arbitration  to  estimate  the  damages 
caused  to  the  plaintiff,  and  the  company  by  the  express  terms  of 
its  charter  was  bound  to  make  suitable  crossings  for  the  accom- 
modation of  land-owners  through  whose  land  the  right  of  way  was 
taken,  and  the  land-owner  told  the  agents  of  the  company,  at  the 
hearing  before  the  arbitrators,  that  he  should  require  a  crossing 
to  be  provided  for  his  convenience ;  and  the  agents  claimed  that 
the  arbitrators  had  nothing  to  do  with  this  matter,  and  that  claim 
was  acquiesced  in  by  the  arbitrators  and  the  parties,  and  the  award 
only  embraced  the  damage  to  the  land,  and  subsequently  the  land- 
owner was  induced  to  convey  to  the  company  the  right  of  way, 
without  annexing  a  condition  binding  the  company  to  maintain  a 
crossing  for  his  accommodation  ;  upon  the  assurance  of  the  counsel 
of  the  company  that  such  deed  would  not  affect  his  right  to  claim 
a  crossing,  it  was  held,  upon  a  bill  to  reform  the  deed  and  to 
establish  his  right  to  the  crossing,  that  he  was  entitled  to  the  relief 
sought,  and  an  injunction  was  granted  accordingly.^ 

But  where  a  private  way  crossed  the  line  of  railway  obliquely, 
and  the  award  of  land  damages  only  indicated  the  point  at  which 
the  company  were  to  supply  a  crossing,  it  was  held  a  sufficient 
compliance  witli  the  obligation  of  the  company  to  give  a  crossing 
at  right  angles,  although  this  did  not  connect  with  the  termini 
of  the  road  or  afford  any  access  to  it.^ 

10.  In  some  of  the  states  in  this  country,  the  advantages  and 
disadvantages  of  taking  land  for  a  railway  are  required  to  be 
stated  in  the  report  of  appraisal,  and  the  omission  to  make  such 
*  specific  statement  was  held  a  fatal  omission  .^^    So,  too,  where 

»°  Morse,  Petitioner,  18  Pick.  443. 

"  Green  v.  Morris  &  Essex  Railw.  Co.,  1  Beasley,  165. 

"  Mann  v.  Great  S.  &  W.  Railw.  Co.,  9  Ir.  Com.  L.  Rep.  105. 

"  Ohio  &  Pennsj-lvania  Railw.  v.  Wallace,  14  Penn.  St.  245 ;  Reitenbangh  r, 
Chester  Valley  Railw.,  21  Penn.  St.  100;  R.  R.  Co.  r.  Gilson,  8  Watts,  243; 
Zack  r.  Penn.  Railw.  Co.,  25  Penn.  St.  394.  But  it  has  been  held,  in  some  cases, 
where  the  advantages  resulting  to  the  land-owner  were  to  be  taken  into  the  ac- 
count, that  the  value  of  the  land  need  not  be  stated  separately  from  the  damage, 
in  an  award  of  arbitrators,  but  only  the  amount  of  the  whole  injury.  At  all 
events,  such  amendments  will  be  allowed,  as  to  cure  such  defects.  Greenville  & 
Columbia  Railw.  v.  Nunnamaker,  4  Rich.  107. 

Questions  have  sometimes  been  made,  in  regard  to  which  pairty,  in  proceed- 
ings of  this  character,  is  entitled  to  go  forward,  in  the  proofs  and  argument. 
Upon  principle,  and  in  analogy  to  similar  proceedings  upon  other  subjects,  we 
•268 


§71.  COMPENSATION.  —  MODE   OF   ESTIMATING.  267 

additional  expense  of  fencing  is  allowed  in  improved  land,  the 
report  must  specify  that  fact." 

*  11.  But  in  general  there  is  no  discrimination  made  in  the  report 
estimating  damages  for  taking  land  for  public  works,  between  the 
value  of  the  land  appropriated  and  the  incidental  injury  from 
severance  and  otherwise ;  and  unless  specially  required  by  the 
charter  of  the  company  or  some  other  legislative  act,  such  discrim- 
ination does  not  seem  indispensable  to  the  validity  of  the  report, 
but  would  unquestionably,  in  the  majority  of  cases,  tend  to  render 
the  report  more  satisfactory.^* 

think  there  can  be  little  doubt  this  right  is  with  the  land-owner,  in  the  proceed- 
ings before  the  jury  and  the  commissioners  or  arbitrators,  where  he  is  to  all 
intents  actor.  But  after  having  obtained  an  award,  it  has  been  more  usual,  in 
practice,  to  allow  the  excepting  party  to  go  forward.  1  Greenleaf's  Ev.  §§  76, 
77  ;  Connecticut  River  Railw.  c.  Clapp,  1  Cush.  559 ;  8.  c.  1  Am.  Railw.  C.  450 ; 
Mercer  v.  WhaU,  5  Q.  B.  447. 

But  see  Albany  N.  Railw.  Co.  v.  Lansing,  16  Barb.  68,  where  the  court  say, 
♦'  The  commissioners  have  the  right  and  power  to  exercise  their  own  discretion 
in  reference  to  the  order  that  they  take  in  appraising  the  land.  They  may  view 
the  land  first  and  hear  the  proofs  and  allegations  afterwards,  or  vice  versa.  So 
whether  one  party  or  the  other  should  first  be  heard,  is  for  them  to  determine. 
Having  decided  that  the  railway  corporation  might  open  and  close  the  hearing, 
the  defendant  was  concluded  by  their  decision,  as  also  would  their  decision  have 
been  conclusive  on  the  company  had  the  same  privilege  been  awarded  to  the 
owner  of  the  land."  But  where  the  error  in  the  exercise  of  this  discretion  does 
manifest  wrong,  at  nisi  jyritts,  the  verdict  will  be  set  aside  for  this  reason  alone 
in  the  full  bench.     1  GreenleaTs  Ev.  104  and  note,  §  76. 

But  awards  of  land  damages  have  been  set  aside  for  excessive  damages. 
Somerville  &  Easton  Railw.  v.  Doughty,  2  Zab.  495.  But  this  subject  was 
somewhat  considered  in  Troy  &  Boston  Railw.  v.  Lee.  13  Barb.  169 ;  Same  v. 
Northern  Turnpike  Co.,  16  Barb.  100;  and  it  was  held  that  such  award  should 
not  be  set  aside,  unless  it  appeared  that  the  commissioners  erred  in  the  principles 
by  which  their  judgment  should  be  guided,  or  were  clearly  mistaken  in  the  appli- 
cation of  correct  principles.  This  is  putting  them  much  upon  the  same  ground 
as  awards  in  other  cases.  And  in  Walker,  r.  Boston  &  Maine  Railw.,  3  Cush.  1, 
it  was  held,  that  the  common  pleas,  to  whom  the  verdict  of  a  sheriff's  jury  is  to 
be  returned,  and  who  may  set  the  same  aside,  for  any  good  cause,  were  justified 
in  doing  so,  for  irregularity  in  impanelling  the  jury ;  or  in  the  conduct  of  the 
jurj- ;  or  in  the  instructions  given  the  jurj'  by  the  sheriff;  or  for  facts  affecting 
the  purity,  honesty,  or  impartiality  of  the  verdict ;  such  as  tampering  with  the 
jury  or  other  misconduct  of  the  party ;  or  any  irregularity  or  misconduct  of 
the  jurors.  But  in  a  court  of  error  the  verdict  can  only  be  set  aside  for  error 
appearing  of  record.  But  see  §  72,  post ;  Nicholson  v.  New  York  &  New  Haven 
Railw.,  22  Conn.  74. 

'*  New  Jersey  Railw.  v.  Suydam,  2  Harrison,  25. 

'*  Trenton  Water  Power  Co.  v.  Chambers,  2  Beasley,  199. 

•269 


\ 


268  EMINENT  DOMAIN.  CH.  XT. 

12.  In  contracts  between  railway  companies  and  land-owners, 
in  regard  to  farm  accommodations,  if  the  company  desire  to  retain 
any  special  distinction  conferred  by  statute,  they  must  incorporate 
the  statute,  either  in  terms  or  by  reference,  into  the  contract. 
Otherwise  the  company  will  be  held  strictly  to  the  terms  of  the 
contract  as  applied  to  the  subject-matter.^^ 

13.  Where  there  is  any  controversy  in  regard  to  the  mode  of 
crossing  highways  and  turnpikes  by  railway  companies,  the  court 
will  refer  the  matter  to  men  of  experience  and  skill  in  such  ques- 
tions.i'^ 

14.  A  permission  in  a  railway  charter  to  cross  a  street  or  high- 
way by  a  level  crossing,  by  making  a  bridge  over  the  street  for  the 
accommodation  of  foot  passengers,  is  not  peremptory  upon  the 
company.  They  may  still  be  permitted  to  cross  the  street  other- 
wise than  on  a  level  on  their  undertaking  to  abide  by  any  order 
the  court  might  make  as  to  damages.^* 

15.  Where  land  is  sold  to  a  railway  company  upon  condition  of 
furnishing  such  farm  accommodations  as  the  land-owner  should 
notify-  to  the  company  within  one  month,  time  is  regarded  as  of 
the  essence  of  the  condition,  and  if  notice  is  not  given  within 
the  time  limited  the  court  will  neither  order  the  company  to 
make  such  accommodations  as  are  demanded,  or  even  such  as  are 
proper.i^ 

"  aarke  v.  M.  Sh.  &  L.  Railw.  Co.,  1  Johns.  &  H.  631. 

"  Atty.-Genl.  v.  Dorset  Railw.  Co.,  3  Law  T.  N.  S.  608, 

"  Dover  Harbor  v.  L.  C.  &  Dover  Railw.  Co.,  7  Jur.  N.  S.  453. 

'»  Darnley  t\  London,  Chatham,  &  Dover  Railw.  Co.,  3  De  G.,  J.  «&  S.  24; 
8.  c.  11  Jur.  N.  S.  520;  s.  c.  9  id.  148,  where  the  Vice-Chanoellor  decided 
otherwise. 


§72. 


MODE  OF  PROCEDURE. 


269 


•SECTION  X. 


Mode  of  Procedure. 


1.  Legislature  may  prescribe. 

2.  Must  be  ufxm  proper  notice. 

3.  Formal  exceptions  waived,  by  appearance. 

4.  Unless  exception  is  upon  record. 
6.  Prof>er  parties,  those  in  interest. 

6.  Title  may  be  examined. 

7.  Plaintiffs  must  show  Joint  interest. 

8.  Jury  mayjind  facts  and  refer  title  to  the 

court. 

9.  Ixmd  must  be  described  in  verdict. 

10.  Distinct  finding  on  each  claim. 

11.  Different  interesU. 

12.  What  evidenee  competent. 
18.  Proof  of  value  of  land. 
14.  Opinion  of  witnesses. 


15.  Testimony  of  experts. 

16.  Matters  incapable  of  description. 

17.  CoeU. 

18.  Expenses. 

19.  Commissioners' fixt. 

20.  Appdlant  failing  must  pay  costs. 

21.  Competency  of  jurors. 

22.  Power  of  court  to  revise  proceedings. 

23.  Debt  will  not  lie  on  conditional  report. 

24.  Excessive  damages  ground  of  setting  aside 

verdict. 
Note.    Other  matters  of  practice. 

25.  No  effort  to  agree  required  in  order  to  give 

jurisdiction. 


§  72.  1.  It  seems  to  be  universally  admitted,  that  where  the 
organic  law  of  the  state  does  not  prescribe  the  mode  of  procedure, 
in  estimating  land  damages,  for  the  use  of  a  railway  company, 
or  other  public  work,  it  is  competent  for  the  legislature  to  pre- 
scribe the  mode,  and  that  the  mode,  so  prescribed,  must  be  strictly 
followed.^ 

2.  Tims,  it  has  been  held,  that  notice  in  writing  to  the  owner 
of  the  land  to  be  taken,  its  situation  and  quantity,  must  be  given.^ 
But  the  form  of  the  notice,  or  whether  signed  by  the  company,  or 
by  the  commissioners,  is  not  important.^  And  it  is  requisite,  not 
only  that  proper  notice  should  be  given,  but  that  it  should  appear 
upon  the  face  of  the  proceedings  that  the  particular  notice  re- 
quired, by  the  statute,  was  given.*  But  in  general,  we  apprehend, 
if  it  appears  upon  the  proceedings  that  *  notice  was  given  to  the 
land-owner,  it  might,  upon  general  principles,  be  presumed  it  was 
the  notice  required. 

'  Bonaparte  r.  C.  &  A.  Railw.,  Bald.  C.  C.  R.  205;  Bloodgood  p.  M.  &  H. 
RaUw.,  14  Wend.  61 ;  8.  c.  18  id.  9;  s.  c.  2  Am.  Railw.  C.  416. 

*  Vail  r.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  the  notice  to  appoint  com- 
missioners need  not  describe  the  land,  it  is  held  in  other  cases.  Doughty  v. 
SomerviUe  &  Easton  Railw.,  id.  442. 

'  Ross  p.  Elizabethtown  &  Somerrille  Railw.,  Spencer,  280. 

*  Van  Wickle  v.  Railw.  Co.,  2  Green,  162.  See  abo  Bennet  «.  Railw.,  id. 
145. 

•  270,  271 


270  EMINENT   DOMAIN.  CH.  XI. 

3.  But  merely  formal  exceptions  to  the  mode  of  procedure,  and 
the  competency  of  the  triers,  in  such  cases,  must  be  taken  at  the 
earliest  opportunity,  where  there  is  an  appearance,  or  they  will  be 
regarded  as  waived.^ 

4.  And  after  appeal,  it  should  appear  by  the  record  that  merely 
formal  exceptions  were  made  in  the  proceedings  below,  and  over- 
ruled, or  they  cannot  be  revised.^  So,  too,  where  the  party,  ex- 
cepting to  proceedings  before  commissioners,  applies  for  a  jury  to 
revise  the  assessment  of  damages,  it  will  be  regarded  as  a  waiver 
of  the  exceptions.^  He  should  have  applied  for  a  certiorari^  if  he 
intended  to  revise  the  case  upon  his  exceptions.^ 

5.  In  regard  to  the  proper  parties  to  such  proceedings,  almost 
infinite  variety  of  questions  will  arise.  The  only  general  rule 
which  can  be  laid  down,  perhaps,  is,  that  those  having  an  in- 
terest in  the  question,  may  become  parties  plaintiflf,  or  be  made 
parties  defendant,  according  to  the  character  and  quality  of  the 
interest.^ 

6.  In  the  English  courts,  it  has  been  held,  that  these  summary 
tribunals  for  estimating  land  damages  are  not  to  inquire  into  the 
title  of  the  claimants.^  But  in  some  cases,  in  this  country,  it  has 
been  held,  that  the  claimant's  title  to  the  land  is  a  *  proper  subject 
of  inquiry,  before  the  jury,  in  estimating  damages.^  And  where 
the  commissioners  refuse   to   allow  the  petitioner   damages,  on 

*  Fitchburg  Railw.  v.  Boston  &  Maine  Rallw.,  3  Cush.  58 ;  s.  c.  1  Am.  Railw. 
C.  508 ;  Walker  v.  Boston  &  Maine  Railw.,  3  Cush.  1 ;  Pittsfield  &  North  Adams 
Railw.  V.  Foster,  1  Cush.  480 ;  Field  v.  Vermont  &  Massachusetts  Railw.,  4  Cush. 
150 ;  Taylor  v.  County  Commissioners,  13  Met.  449 ;  Porter  v.  County  Commis- 
sioners, id.,  479  ;  Meacham  v.  Fitchburg  Railw.,  4  Cush.  291 ;  Davis  v.  Charles 
River  Branch  Railw.,  11  Cush.  506. 

®  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58 ;  Ashby  v.  Eastern 
Railw.,  5  Met.  368;  Greenwood  v.  Wilton  Railw.,  3  Foster,  261;  Parker  v. 
Boston  &  Maine  Railw.,  3  Cush.  107;  Mason  v.  Railw.,  31  Me.  215;  A.  &  St. 
L.  Railw.  Co.  ».  Cumberland  Co.  Comm.,  51  Me.  36.  And  it  seems  to  be  re- 
garded as  indispensable  that  parties  under  disability  should  be  properly  repre- 
sented in  the  proceedings  the  same  as  in  other  suits.  Hotchkiss  v.  Auburn  & 
Rochester  Railw.,  36  Barb.  600.  But  where  a  demand  and  tender  of  the  value 
of  land  required,  together  with  other  legal  damages,  are  required  before  instituting 
compulsorj-  proceedings,  the  requirement  cannot  apply  to  the  case  of  an  infant, 
whose  rights  will  be  sacred  till  of  full  age.  Indiana  Central  Railw.  Co.  v.  Oakes, 
20  Ind.  9. 

'  Post,  §  98. 

8  Directors,  «&c.  r.  Railw.,  7  Watts  &  Serg.  236.    Allyn  v.  Prov.  W.  &  B. 
Railw.,  4  Rhode  Is.  457. 
*  272 


§  72.  MODE   OF   PROCEDURE.  271 

account  of  his  not  being  the  owner  of  the  land,  this  is  such  a  final 
decision  as  may  be  revised  by  a  jury,  and  the  Supreme  Court  will 
allow  a  mandamus,  if  that  is  denied.^ 

7.  Parties  who  join  must  show  a  joint  interest  in  the  land,  but 
this  need  not  always  be  shown  by  deed.  Oral  evidence  is  some- 
times admissible,  where  one  owns  the  fee,  and  others  have  a  joint 
interest,  in  consequence  of  erections,  and  the  jury  may  properly 
pass  upon  the  title,  as  matter  of  fact.^'' 

8.  But  the  jury  are  not  bound  to  decide  upon  conflicting  titles, 
but  may  report  the  facts,  without  determining  the  owner.^^  And 
it  has  been  held  that  the  jury  are  not  bound  to  find  a  special  ver- 
dict, in  regard  to  the  title  of  the  claimant,  or  where  there  are  con- 
flicting claims,  but  may  do  so  with  propriety .^^ 

9.  The  jury  should  describe  the  laud  with  intelligible  bound- 
aries.^ 

•  Carpenter  c.  County  Commissioners  of  Bristol,  21  Pick.  258.  The  trustee, 
and  not  the  cestui  que  trust,  is  the  proper  party  to  such  proceeding.  Davis  ». 
Charles  River  Branch  Railw.,  11  Cush.  506.  The  title  of  the  petitioner  may  be 
inquired  into,  either  on  the  return  of  the  petition  or  of  the  report.  Church  v. 
Northern  Central  Railw.  Co.,  45  Penn.  St.  339.  The  mode  of  proceeding  on 
certiorari,  and  in  other  writs,  is  here  discussed. 

'"  Ashby  r.  Eastern  Railw.,  5  Met.  368.  So  also  where  the  land  belonged  to 
a  partnership,  and  was  not  needed  for  the  payment  of  partnership  debts,  one  of 
the  partners  having  deceased,  it  was  held  the  title  remained  in  the  partners  aa 
tenants  in  common,  and  that  proceedings  to  recover  damages  by  reason  of  laying 
a  railway  upon  it,  were  properly  taken  in  their  joint  names.  Whitman  r.  Boston 
&  Maine  Railw.,  3  Allen,  133. 

"  Matter  of  Anthony  Street,  19  Wend.  678.  So,  too,  where  one  owns  the 
fee,  and  another  has  a  bond  for  a  deed,  the  condition  of  which  is  not  yet  per- 
formed, they  may  join.  Proprietors  of  Locks  and  Canals  v.  Nashua  &  Lowell 
Railw.,  10  Cush.  386. 

**  Davidson  r.  Boston  &  Maine  Railw.,  3  Cush.  91 ;  1  Am.  Railw.,  C.  534. 
The  sheriflf  is  bound  to  give  the  jury  de&nite  instructions,  in  regard  to  tlie  effect 
of  a  conveyance.     lb. 

"  Vail  V.  Morris  &  Essex  Railw.,  1  Zab.  189.  But  see  Philadelphia  Railroad 
e.  Trimble,  4  Whart.  47.  The  jurj-  are  not  to  includ«  in  their  estimate  the  ex- 
pense of  farm  accommodations,  which  it  is  the  duty  of  the  railway  to  furnish.  lb. 
But  if  this  be  done,  and  the  party  have  judgment  on  the  verdict,  he  is  bound  to 
make  the  erections.  Curtis  v.  Vermont  Central  lUilw.,  23  Vt.  613.  One  tenant 
in  common  cannot  proceed  in  his  own  name  to  have  the  damages  done,  by  a  rail- 
way, to  the  common  land,  assessed,  even  where  he  has  authority  from  his  co-tenant 
to  do  80.     Railw.  c.  Bucher,  7  Watts,  33. 

But  if  the  petition  be  signed  by  the  lessee  and  the  agent  of  the  owner  of 
mines,  this  is  a  sufficient  representation  of  the  interest.     Harvey  v.  Lloyd,  3 


272  EMINENT   DOMAIN.  CH.  XI. 

*  10.  Where  the  claim  for  damages  consists  of  several  items,  it 
is  more  conducive  to  a  final  disposition  of  the  case  to  siate  the 
finding  upon  each  item.  In  such  case  any  objectionable  item 
may  be  remitted  or  deducted  without  the  necessity  of  a  re- 
hearing.^^ 

11.  But  where  the  petition  alleges  several  distinct  causes  of 
damage,  and  a  general  verdict  is  rendered,  if  one  or  more  of  the 
causes  is  insufficient,  it  will  not  be  presumed  the  jury  gave  any 
damages,  on  such  insufficient  claims,  in  the  absence  of  any  in- 
structions by  the  sheriff  in  relation  to  them.^°  But  it  is  not  neces- 
sary to  apportion  the  damages  to  several  joint-owners,  and  a  tenant 
for  life  may  take  proceedings  to  obtain  damages  done  to  his  estate 
by  the  construction  of  a  railway,  without  joining  the  remainder- 
man.i^ 

12.  The  character  of  the  proof  admitted  to  enable  the  triers  to 
learn  the  value  of  land  is  so  various,  that  it  is  not  easy  to  fix  any 
undeviating  rule  upon  the  subject.  It  seems  to  have  been-  the  in- 
tention of  the  courts  to  allow  only  strictly  legal  evidence  to  be 
received,  such  as  would  be  admissible  in  the  trial  of  similar  ques- 
tions before  a  jury  in  ordinary  cases.^'^ 

13.  It  has  been  allowed  to  show  what  price  the  company  had 
paid  by  voluntary  purchase  for  land  adjoining,  but  in  the  same 
case  it  was  held  not  competent  to  inquire  of  adjoining  land-own- 
ers, who  were  farmers,  and  had  occasionally  bought  and  sold 
*  land,  what  was  the  value  of  their  own  land  adjoining.^^    Nor  is 

Penn.  St.  331.  See  also  Shoenberger  v.  Mulhollan,  8  Penn.  St.  134.  See  also 
Cleveland  &  Toledo  Railw.  v.  Prentice,  13  Ohio  N.  S.  373  ;  Strang  v.  Beloit  &  M. 
Railw.  Co.,  16  Wis.  635.  It  is  here  said  that  the  description,  by  way  of  an 
approximating  diagram,  may  be  sufficient  without  an  actual  survey. 

"  Fjtchburg  Railw.  v.  Boston  &  Maine  Railw.,  3  Cush.  58 ;  s.  c.  1  Am.  Railw. 
C.  608. 

'*  Parker  ».  Boston  &  Maine  Railw.,  3  Cush.  107. 

"  Railroad  v.  Boyer,  13  Penn.  St.  497  ;  Directors  of  Poor  v.  Railw.,  7  Watts 
&  Serg.  236 ;  Pittsburgh  &  Steuben  Railw.  ».  Hall,  25  Penn.  St.  336.  In  one 
case  it  was  said  to  be  the  duty  of  the  commissioners  to  assess  damages  to  joint 
owners  jointly.  Ross  v.  Elizabethtown  &  Somerville  Railw.,  Spencer,  230. 
See  also  Colcough  v.  Nashville  &  N.  W.  Railw.  Co.,  2  Head.  171. 

'^  Troy  &  Boston  Railw.  v.  Northern  Turnpike  Co.,  16  Barb.  100;  Johnson^ 
J.,  in  Rochester  &  SjTacuse  Railw.  v.  Budlong,  6  How.  Pr.  467;  Lincoln  o. 
Saratoga  &  Schenectady  Railw.,  23  Wend.  425,  432.        ■ 

'*  Wyman  v.  Lexington  &  West  Cambridge  Railw.,  13  Met.  316.  But  in 
Roberts  v.  Knapp,  35  N.  Y.  91,  it  was  held,  that  farmers  and  residents  of  the 
*  273,  274 


§  72.  MODE   OP  PROCEDURE.  273 

it  competent  to  show  for  what  price  one  had  contracted  to  buy 
land  adjoining.^*  Nor  can  the  claimant  prove,  what  the  com- 
pany have  offered  him  for  the  land;**  nor  what  the  company 
have  been  compelled  to  pay  for  land  adjoining,  which  was  taken 
compulsorily.2* 

immediate  neighborhood  are  competent  to  fix  the  price  of  land  in  their  vicinity ; 
one  who  had  been  a  farmer,  but  had  changed  his  occupation  to  that  of  a  mechanic, 
was  nevertheless  held  a  competent  witness  to  testify  to  the  value  of  land  in  the 
neighborhood.'  And  in  Shattuck  r.  Stoneham  Branch  Railw.,  6  Allen,  115|  it 
was  held,  that  in  such  proceedings  the  land-owner,  being  a  competent  witness, 
may  testify  to  his  opinion  of  the  amount  of  damage  which  he  has  sustained,  and 
may  prove  recent  sales  of  other  lands  in  the  vicinity,  similarly  situated,  and 
about  the  same  time ;  but  he  cannot  give  evidence  of  the  opinions  of  others,  as 
to  the  value  of  other  lands  in  the  vicinity.  But  it  is  rather  matter  of  discretion 
with  the  court,  whether  sales  of  other  lands  were  sufficiently  recent,  or  the  land 
sufficiently  like  that  in  question,  to  afford  aid  to  the  jury.  And  on  such  hearing 
the  company  may  prove  that  they  have  located  a  passenger  station,  since  the 
hearing  began,  near  the  petitioner's  land  over  which  the  railway  passed. 

"  Chapin  v.  Boston  &  Providence  Railw.,  6  Cush.  422. 

"  Upton  r.  South  Reading  Railw.,  8  Cush.  600. 

"  White  V.  Fitchburg  Railw.,  4  Cush.  440.  Only  such  damages  as  are  pecu- 
liar to  the  owner  of  the  land  taken,  and  not  those  which  are  common  to  all  land 
in  the  vicinity,  can  be  considered.  Freedle  v.  North  Carolina  Railw.,  4  Jones 
Law,  89.  It  has  been  held  that  the  benefits  resulting  to  the  land-owner  from 
the  construction  of  the  road  are  to  be  deducted,  in  estimating  damages  for  land 
taken  for  a  railway ;  and  that  consequently  a  statute  providing  for  such  deduc- 
tion is  not  thereby  rendered  unconstitutional.  C.  P.  &  Ind.  Railw.  v.  Simpson, 
5  Ohio  N.  S.  261.  But  as  the  constitution  of  this  state  expressly  required  that 
compensation  to  the  land-owner  should  be  made  in  all  cases  when  land  is  taken 
for  public  use  in  money,  it  seems  scarcely  consistent  to  say  that  the  benefits  to 
the  land-owner  can  in  all  cases  be  deducted,  since  in  some  cases  the  benefits  to 
the  particular  piece  of  land,  a  portion  of  which  is  taken,  might  more  than  com- 
pensate for  that  which  is  taken,  thus  leaving  nothing  to  be  compensated  "  in 
money." 

The  force  of  this  embarrassment  was  felt  by  the  court  in  a  highway  case  in 
Vermont,  where  the  constitution  requires,  that  "  whenever  private  property  is 
taken  for  public  use,  the  owner  ought  to  receive  an  equivalent  in  money."  The 
court  escaped  from  the  embarrassment  here  by  a  device,  which  some  might  pos- 
sibly regard  as  more  ingenious  than  ingenuous,  by  saying,  that  as  the  constitu- 
tion only  applied  to  property  "  taken  for  public  use,"  this  could  not  reach  cases 
where  only  an  easement  in  property  was  taken.  The  court  might,  with  almost 
equal  propriety,  have  said,  that  the  provision  of  the  constitution  "  ought  to  re- 
ceive," being  in  the  optative  mood,  did  not  imply  an  imperative  duty,  as  few  per- 
sons expect  to  obtain  by  process  of  law  all  which  they  "ought  to  receive," 
Livermore  v.  Jamaica,  23  Yt.  861,  Bec^/Uld,  J.  dissenting,  sub  silentio.    Ante, 

18 


274  EMINENT  DOMAIN.  CH.  XI. 

14.  And  it  has  been  held  that  witnesses  cannot  be  allowed 
to  give  their  opinion  of  the  value  of  the  land  or  materials 
taken.'^  *  This  inquiry  leads  to  the  discussion  of  the  general  ques- 
tion, of  what  matters  may  be  proved,  by  the  opinion  of  witnesses 
who  are  not  possessed  of  any  peculiar  knowledge,  skill,  or  ex- 
perience upon  the  subject. 

15,  And  it  must  be  admitted  the  cases  are  not  altogether  recon- 
cilable upon  the  subject.  Experts  are  admitted  to  express  their 
opinions,  not  only  upon  their  own  observation,  but  upon  testimony 
given  in  court,  by  other  witnesses,  and  where  the  testimony  is 
conflicting,  upon  a  hypothetical  state  of  facts.^  The  testimony  of 
such  witnesses  is  intended  to  serve  a  double  purpose,  that  of 
instruction  to  the  jury  upon  the  general  question  involved,  and 
elucidation  of  the  particular  question  to  be  considered  by  them.^ 
The  resort  to  the  assistance  and  instruction  of  persons  skilled 
in  particular  departments  of  art  or  science  is  constantly  adverted 
to,  as  of  great  advantage  in  enabling  the  triers  to  properly  com- 
prehend those  subjects  out  of  the  range  of  their  general  knowledge, 

§  71,  pi.  6.     See  also  C.  &  P.  Railw.  v.  BaU,  5  Ohio  N.  S.  668 ;  Kramer  v.  Clev. 
&Pittsb.  Railw.,  id.  140. 

**  Montgomery  &  West  Point  Railw.  v.  Varner,  19  Ala,  186 ;  Concord 
Railw.  V.  Greely,  3  Foster,  237;  Buffum  v.  New  York  &  Boston  Railw.,  4 
Rh.  I.  221;  Cleve.  &  Pittsb.  Railw.  v.  BaU,  5  Ohio  N.  S.  568.  But  the  wit- 
ness may  give  an  opinion  as  to  the  value  of  the  whole  land,  both  before  and 
after  the  location  of  the  road.  lb.  And  so  also  in  Illinois  &  Wisconsin  Railw. 
V.  Van  Horn,  18  lU.  257.  See  also  Dorian  v.  E.  Br.  &  Way.  RaUw,  Co,, 
46  Penn.  St.  520.  In  a  case  in  Pennsylvania  (East  Penn.  Railw.  Co.  v. 
Hiester,  40  Penn.  St.  53),  it  is  said  that  the  only  proper  test  of  the  value  of 
land  so  taken  is  the  opinion  of  witnesses  as  to  the  value  of  the  land  taken.  In 
view  of  its  location  and  productiveness,  its  market  value,  or  the  general  selling 
price  of  land  in  the  neighborhood.  And  this  seems  to  us  exceedingly  sensible 
and  free  from  refinement  or  conceit.  See  also  Same  v.  Hottenstine,  47  Penn. 
St,  28. 

^  1  Greenleaf  Ev.  §  440.  Thus  the  testimony  of  persons  employed  in  making 
insurance  of  buildings  against  fire,  may,  in  actions  against  railways  for  conse- 
quential damages  to  buildings,  by  the  near  approach  of  the  track,  express  their 
opinion  of  the  effect  thereby  produced  upon  the  rent,  or  the  rate  of  insurance 
of  such  buildings.  Webber  v.  Eastern  Railw.,  2  Met.  147.  See  also  Henry  v. 
Dubuque  &  Pacific  Railw.,  2  Clarke,  288.  And  in  the  case  of  Brown  r.  Prov- 
idence, Warren,  &  Bristol  Railw.,  6  Gray,  35,  it  was  held,  that  the  company 
could  not  show  that  liquors  were  sold,  or  to  be  sold,  upon  land,  as  a  part  of  the 
inducement  to  pay  so  high  a  rent,  or  that  it  was  "  contemplfited  "  having  a  station 
near  the  point ;  such  testimony  being  too  indefinite  and  remote. 
*276 


§  72.  MODE  OF  PROCEDURE.  275 

or  the  particular  studies  of  judges,  or  jurors,  in  some  of  the 
best-considered  English  cases,  witliin  the  last  few  years.^  But 
the  testimony  of  scientific  witnesses  will  not  establish  facts  in 
conflict  with  the  axiomatic  principles  of  science  and  philosophy, 
or  those  which  contradict  the  evidence  of  the  senses,  or  of  con- 
sciousness.^ 

*  16.  But  there  is  certainly  a  very  considerable  number  of  sub- 
jects, in  regard  to  which  the  jury  are  supposed  to  be  well  instruct- 
ed, and  altogether  capable  of  forming  correct  opinions,  and  in 
regard  to  which  the  testimony  of  experts  is  not  competent,  or  not 
requisite,  but  which  it  is  more  or  less  difficult  for  the  witnesses  to 
describe  accurately,  so  as  to  place  them  fully  before  the  minds  of 
the  jury,  as  they  exist  in  the  minds  of  the  witnesses.  Among 
these  are  inquiries  in  regard  to  the  extent  of  one's  property,  sol- 
vency, health,  affection,  or  antipathy,  character,  sanity,  and  some 
others.  In  such  cases  the  witnesses'  knowledge  is  chiefly  matter 
of  opinion,  and  it  is  impossible  to  enumerate  each  particular  fact. 
Of  this  character  seem  to  us  to  be  questions  in  regard  to  the 
quality  and  value  of  property.  One  may  enumerate  some  of  the 
leading  facts  upon  which  such  an  opinion  is  based  ;  but  after  all, 
the  testimony,  as  to  facts,  is  excessively  meagre,  without  the 
opinion  of  the  witness,  either  upon  the  very  subject  of  inquiry,  or 
some  one  as  near  it  as  can  be  supposed.  Hence  in  those  courts 
where  the  opinion  of  witnesses,  in  regard  to  the  value  of  property, 
real  or  personal,  is  not  admitted,  it  leads  to  sundry  shifts  and 
evasions,  in  the  course  of  the  examination  of  witnesses  upon  that 
subject,  which,  while  it  is  not  a  little  embarrassing  in  itself,  at  the 
same  time  illustrates  the  inconsistency,  not  to  say  absurdity,  of 
the  rule.* 

**  Broadbcnt  c.  Imperial  GrU  Co.,  7  De  G.  M.  &  6.  436,  466,  opinion  of 
Lord  Chancellor  Oranworth. 

*  Opinion  of  the  court  in  Concord  Railw.  r.  Greely,  8  Fost.  287.  "  A  wit- 
ness may  state  what  was  the  cost  of  property  of  a  particular  description  at  a 
given  place,  in  order  to  ascertain  the  value  of  property  of  a  similar  description. 
Whipple  r.  Walpole,  10  N.  H.  130.  But  evidence  of  the  price  for  which  the 
corporation  offered  to  sell  a  tract  adjoining  Greely's,  and  how  much  they  re- 
fused to  take  for  it,  is  certainly  of  doubtful  competency.  We  have  held  at  this 
term,  in  the  case  of  Hersey  r.  The  Merrimack  County  Mutual  Fire  Insurance 
Company,  in  Merrimack  county,  that  what  the  owner  of  a  piece  of  real  estate 
said  he  would  sell  the  same  for,  was  competent  evidence  against  him,  as  tending 
to  show  its  value.  But  that  was  a  statement  in  regard  to  the  value  of  the  land 
itself,  while  the  evidence  admitted  here  was  going  one  step  further ;  it  was  a 

•276 


276  EMINENT  DOMAIN.  CH.  XI. 

*  17.  In  regard  to  costs,  in  such  proceedings,  the  more  general 
rule  is  not  to  allow  them,  unless  specifically  given  by  statute.^^ 

statement  in  regard  to  other  lands ;  and  it  is  quite  questionable  whether  it  could 
have  any  legitimate  tendency  to  prove  the  value  of  Greely's  land. 

"  On  questions  of  science,  skill,  or  trade,  or  others  of  alike  kind,  experts  may 
not  only  testify  to  facts,  but  are  permitted  to  state  their  opinions.  1  Greenl.  Ev. 
§  440.  But  upon  subjects  of  general  knowledge,  which  are  understood  by  men 
in  general,  and  which  a  jury  are  presumed  to  be  familiar  with,  witnesses  must 
testify  as  to  facts  alone,  and  the  jury  must  form  their  opinions.  In  such  cases, 
the  testimony  of  witnesses,  as  experts  merely,  is  not  admissible." 

If  an  inquiry  arose  in  regard  to  the  value  of  a  cargo  of  flour,  it  would  cer- 
tainly sound  strange  to  hear  witnesses  testify  what  precisely  similar  flour  is 
worth,  and  at  the  same  time  be  gravely  told,  that  they  were  studiously  to  avoid 
expressing  any  opinion  of  the  value  of  this  very  flour,  which  they  had  seen  and 
examined,  and  in  regard  to  which  the  whole  testimony  was  received.  Yet  such 
is,  from  necessity,  the  course  resorted  to,  under  the  rule.  The  more  general 
course  is,  we  think,  to  receive  the  opinion  of  witnesses,  acquainted  with  the 
property  and  the  state  of  the  market,  as  to  the  value  of  the  particular  property 
in  question.  White  v.  Concord  Railw.,  10  Foster,  188.  But  in  New  Hamp- 
shire, in  a  late  case,  it  is  held  that  the  opinion  of  witnesses,  in  regard  to  apparent 
health,  is  competent  to  be  given ;  and  this  seems  to  be  yielding  the  main  point 
of  exclusion  before  insisted  upon.  Spear  v.  Richardson,  34  N.  H.  428.  In 
this  same  case  the  opinion  of  witnesses,  whether  a  horse  was  sound,  or  had  a 
particular  disease,  the  heaves,  was  excluded  because  the  witness  was  not  shown 
to  be  an  expert.  We  are  not  surprised  that  the  judge  regarded  the  distinction 
as  "  somewhat  nice."  "  And  in  Currier  v.  Boston  &  M.  Railw.,  34  N.  H.  498, 
it  was  held  that  a  witness  could  give  an  opinion  in  regard  to  the  occurrence  of 
hardpan  in  an  excavation ;  and  in  Hackett  v.  Boston,  Con.  &  Mont.  R.,  35  N. 
H.  390,  it  was  held  that  a  witness  might  express  an  opinion  in  regard  to 
distances,  dimensions,  and  qualities.  See  also  Roch.  &  Sy.  Railw.  v.  Budlong, 
6  How.  Pr.  467. 

And  in  Illinois  &  Wisconsin  Railw.  v.  Van  Horn,  18  Illinois,  257,  it  is  held 
that  it  is  proper  to  have  the  opinion  of  witnesses  in  regard  to  the  value  of  city 
lots,  "as  they  have  no  stated  value."  Skinner,  J.  said:  "To  describe  to  a 
jury  a  piece  of  ground,  however  minutely,  with  its  supposed  adaptations  to  use, 
advantages  and  disadvantages,  and  demand  of  them,  upon  this  information  alone, 
a  verdict  as  to  its  value,  would  be  merely  farcical ;  and  this,  indeed,  is  all  that 
can  be  done  to  enable  them  to  arrive  at  a  conclusion  as  to  the  value,  unless  the 
witnesses  are  allowed  to  state  their  judgment  or  opinion,  together  with  the  facts 
upon  which  such  opinion  is  founded.  Butler  v.  Mehrling,  15  111.  488 ;  Kel- 
logg V.  Krauser,  14  Serg.  &  Rawle,  137."  In  Cleve.  &  Pittsb.  Railw.  r.  Ball, 
6  Ohio  N.  S.  568,  it  is  said,  witnesses  may  be  allowed  to  express  an  opinion  as  to 
the  value  of  the  land  taken,  but  not  as  to  the  extent  of  damages  which  the  land- 
owner will  sustain  by  the  appropriation  of  the  land  to  public  use,  that  being  the 
very  question  to  be  settled  by  the  triers.     This  seems  to  us  placing  the  matter 


"  Herbein  v.  The  Railroad,  9  Watts,  272. 
•277 


§  72.  MODE   OP  PROCEDURE.  277 

*  But  where  the  statute  provides  for  an  assessment  of  laud  dam- 
ages, by  a  jury,  at  the  suit  of  the  party  aggrieved,  tlie  costs  to 
be  paid  by  the  company,  this  was  held  not  to  include  the  fees 
of  witnesses  examined  by  tlie  jury,  on  the  part  of  the  claimant.^ 

18.  But  the  terms  "  costs  and  expenses  incurred,"  were  held 
to  include  the  costs  of  witnesses,  and  of  summoiung  the  viewers.^ 

19.  If  the  act  makes  no  provision  for  compensation  to  the  com- 
missioners, they  have  no  power  to  order  the  company  to  pay  the 
cost  of  their  expenses  and  services.^ 

20.  But  where  the  party  whose  costs  are  rightfully  denied  in 
the  Court  of  Common  Pleas,  appeals  upon  that  question,  and  the 
judgment  is  affirmed,  he  must  pay  costs  to  the  other  party,  conse- 
quent upon  the  appeal.* 

21.  It  is  no  objection  to  the  competency  of  a  juror,  in  this  class 
of  cases,  that  he  had  been  an  appraiser  of  damages  upon  another 
railway,  in  the  same  county,  or  that  he  is  a  stockholder  in  another 
railway  which  had  long  before  acquired  the  lands  necessary  for 
its  use.^ 

upon  its  proper  basis.  One  must  have  had  experience  in  regard  to  the  particu- 
lar point,  as  laying  a  railway  over  a  wharf,  in  order  to  give  an  opinion  of  the 
extent  of  the  injur}'  caused  thereby,  and  it  is  not  sufficient  that  he  may  have 
had  experience  and  skill  in  other  matters  pertaining  to  the  building  and  opera- 
tion of  railways.  Boston  &  Worcester  Railw.  v.  Old  Colony  &  F.  R.  Railw.,  3 
AUen,  142.  The  court  in  this  case  declined  to  set  aside  the  verdict  for  land 
damages,  because  testimony  of  the  sale  of  upland  at  a  considerable  distance 
from  the  wharf,  and  of  the  price  paid  four  months  before  the  time  of  making 
the  location,  was  received,  and  also  of  the  number  of  trains  passing  over  the 
land  taken,  and  of  the  number  of  vessels  and  amount  of  lumber,  wood,  and  coal, 
&c.,  coming  to  the  wharf. 

"  Railroad  v.  Johnson,  2  Wharton,  275. 

«  Penn.  Railroad  v.  Keiffer,  22  Penn.  St.  856 ;  Chicago  &  Mont,  Railw.  v. 
BuU,  20  Illinois,  218. 

"  At.  &  St.  L.  Railroad  r.  The  Comtaissioners,  28  Maine,  112. 

*•  Harvard  Branch  Railw.  v.  Rand,  8  Cush.  218 ;  Commonwealth  v.  Bos- 
ton &  Maine  Railw.,  3  Cush.  56.  But  see  §  71,  note  10,  ante,  in  regard  to 
the  course  of  proceeding,  in  estimating  land  damages.  Where  the  statute  gives 
an  appeal,  in  estimating  land  damages,  to  a  court  of  common-law  jurisdiction, 
and  does  not  prescribe  the  mode  of  trying  the  appeal,  it  will  be  tried  by  com- 
missioners, that  being  the  usual  course  of  trying  cases  of  that  class,  in  common- 
law  courts.  And  a  statute  requiring  parties  to  be  allowed  a  trial  by  jury,  in  all 
cases  proper  for  a  jurj-,  will  not  alter  the  mode  of  trying  such  appeals.  Gold  v. 
Vt.  Central  Railw,,  19  Vt,  478, 

"  People  r.  First  Judge  of  Columbia,  2  Ilill  (N,  Y,),  398,  The  tribunal 
for  assessing  land  damages  should  be  free  from  interest  or  bias  in  order  to  meet 

•278 


278  EMINENT  DOMAIN.  CH.  XI. 

*  22.  Courts  do  not  generally  possess  the  power  to  revise  the 
assessment  of  land  damages,  by  a  jury  or  other  tribunal  appointed 
by  them  for  that  purpose,  upon  its  merits,  and  set  it  aside,  upon 
the  mere  ground  of  inadequacy,  or  excess  of  damages.^ 

23.  Where  commissioners  assessed  land  damages  at  a  sum 
named,  and  stated  further,  that  the  plaintiflf  was  to  receive  an 
additional  sum  in  a  certain  contingency,  and  the  report  became 
matter  of  record,  it  was  held  that  debt  would  not  lie,  for  the 
additional  sum,  upon  averring  the  happening  of  the  contin- 
gency.^ 

24.  Where  the  statute  gave  the  court  a  discretion,  to  accept  and 
confirm  the  inquest  of  land  damages,  or  order  a  new  inquest,  "  if 
justice  shall  seem  to  require  it,"  it  was  held  they  might  set  aside 
the  report  for  mere  excess  of  damages,  and  that  the  Supreme 
Court  might  do  the  same,  when  the  proceedings  are  brought  up  by 
certiorari.^ 

the  constitutional  requirement  for  just  compensation.  Powers  v.  Bears,  12  Wis. 
213.     But  see  Strang  v.  Beloit  &  M.  Railw.  Co.,  16  Wis.  635. 

^  Willing  V.  Baltimore  Railw.,  5  Whart.  460.  As  to  what  is  good  cause  for 
setting  aside  the  report  of  commissioners,  see  Bennet  ».  Railw.,  2  Green,  145; 
Van  Wickle  v.  Same,  id.  162 ;  R.  &  S.  RaUw.  r.  Budlong,  6  How.  Pr.  467. 

In  Missouri,  when  the  report  of  commissioners  is  set  aside,  the  court  must 
appoint  a  new  board.  Hannibal  &  St.  Joseph  Railw.  Co.  v.  Rowland,  29  Mo. 
837.  But  this  rule  will  not  apply  where  the  report  is  recommitted  to  the  same 
board,  with  instructions  to  pursue  a  diflferent  rule  in  estimating  damages.     lb. 

"  W.  &  P.  Railroad  Co.  v.  Washington,  1  Robinson  (Va.),  67.  See  also 
Dimick  r.  Brooks,  21  Vt.  569. 

"  Pennsylvania  RaUw.  v.  Heister,  8  Penn.  St.,  445 ;  Same  ».  McClure,  ib. ; 
Same  v.  Riley,  ib. ;  Same  cases,  2  Am.  Railw.  C.  337. 


OTHER  MATTERS  OF  PRACTICE,   EJ  REGARD  TO  ASSESSING  LAXD  DAMAGES. 

AH  the  commissioners  must  be  present  and  act,  in  all  matters  of  a  judicial 
character.  Crocker  v.  Crane,  21  Wend.  211.  In  regard  to  the  mode  of  select- 
ing and  impanelling  juries,  for  assessing  land  damages  against  railways,  the  fol- 
lowing cases  may  be  referred  to :  Penn.  Railw.  v.  Heister,  8  Penn.  St.  445, 
which  decides,  that  where  the  statute  requires  the  sheriff  to  summon  the  jury, 
it  is  irregular  for  him  to  select  them  from  a  list  prepared  by  his  deputy.  And 
Vail  V.  Morris  &  Essex  Railw.,  1  Zab.  189,  where  it  is  held,  that  commissioners 
appointed  to  value  the  land  of  E.  V.  upon  one  route,  adopted  by  the  company, 
cannot  appraise  the  land  of  the  same  person,  when  the  company  adopt  a  differ- 
ent route,  across  the  land. 

In  regard  to  the  right  of  appeal,  which  is  given  in  terms  to  the  party  aggrieved, 
•279 


§  72.    ^  MODE  OP  PROCEDURE.  279 

•  25.  It  does  not  seem  important,  where  the  statute  in  terms 
allows  either  party  to  take  compulsory  proceeding  to  assess  land 
damages  upon  the  parties  failing  to  agree,  that  there  should  have 
been  any  previous  attempt  to  agree,  in  order  to  give  jurisdiction  to 
the  courts  to  assess  the  amount  of  such  compensation.* 

it  has  been  held  to  extend  to  the  railway  company,  as  well  as  the  land-owner. 
Kimball  v.  Kennebec  &  Portland  Railw.,  35  Maine,  255. 

No  appeal  lies  from  the  order  of  the  Supreme  Court,  confirming  the  report  of 
conuuissioners  on  the  appraisal  of  land  damages  for  land  taken  under  the  gen- 
eral railway  act.  The  act  provides  for  no  such  appeal  to  the  Court  of  Appeals, 
and  the  remedy,  in  the  act,  is  intended  to  be  exclusive.  And  besides,  the 
Supreme  Court  exercise  a  discretion,  to  some  extent, -in  confirming  such  reports, 
and  appeals  will  not,  upon  general  principles,  lie  to  revise  such  adjudications. 
New  York  Central  Railw.  v.  Marvin,  1  Keman,  276 ;  Troy  &  Boston  Railw.  v. 
Northern  Turnpike  Co.,  16  Barb.  100. 

Where  the  special  act  of  a  railway  company  required  them  to  give  the  land- 
owner ten  days^  notice  of  the  time  when  a  jury  would  be  drawn  to  assess 
damages,  it  was  held  that  a  strict  compliance  with  this  requirement  was  indispensa- 
ble to  give  jurisdiction,  and  that  the  objection  was  not  waived  by  appearance 
before  the  officer  at  the  time  the  jury  were  drawn,  and  objecting  to  the  regu- 
larity of  the  proceedings,  without  stating  the  grounds,  or  by  appearing  before 
the  jury,  when  they  met  to  appraise  the  damages,  and  objecting  to  one  of  them, 
who  was  set  aside.     Cruger  v.  The  Hudson  River  Railw.,  2  Keman,  190. 

Merc  infonnalities  in  the  simimons,  which  do  not  mislead  the  company,  will  not 
avoid  the  proceeding.  Eastham  v.  Blackburn  Railw.,  9  Exch.  758;  8.  c.  25 
Eng.  L.  &  Eq.  498. 

It  is  not  important  that  the  award  should  specify  the  finding  upon  the  sepa- 
rate items  of  claim.     In  re  Bradshaw,  12  Q.  B.  562. 

Where  the  special  act  of  a  railway  company  prescribes  a  different  mode  of 
procedure,  in  condemning  land,  from  that  recjuired  by  a  general  law  of  the 
state,  subsequently  passed,  the  company  may  pursue  the  course  prescribed  by 
their  special  act.  Clarkson  v.  Hudson  River  Railw.,  2  Keman,  304.  But  it 
seems  to  be  here  considered,  that  the  company  may  adopt  the  course  prescribed 
by  the  general  act,  if  they  so  elect.  And  upon  general  principles  it  would  seem 
that  they  should  do  so,  unless  there  is  something  in  the  general  act  by  which  the 
existing  railways  are  at  liberty  to  proceed  under  their  charters.  This  is  the 
ground  of  the  decision  in  the  last  case.    North  Mo.  Railw.  r.  Gott,  25  Mo.  540. 

^VTiere  the  company's  special  act  vests  specific  and  special  powers  in  them, 
for  the  benefit  of  the  public  (as  to  build  stations  of  given  dimensions  larger  than 
the  general  act  provides),  it  is  not  controlled  by  subsequent  general  acts. 
London  &  Blackwall  Railw.  v.  Board  of  Works,  S  Kay  &  J.  123 ;  s.  c.  28  Law 
Times,  140. 

In  regard  to  the  mode  of  proceeding  in  such  cases,  see  Coster  c.  N.  J.  Railw. 
&  Tr.  Co.,  4  Zab.  730;  Green  r.  Morris  &  Essex  RaUw.,  id.  486;  Pittsfield  & 
North  Adams  Railw.  r.  Foster,  1  Cush.  480. 

»  Bigelow  r.  Miss.  Central  &  Tenn.  Railw.  Co.,  2  Head,  624. 

•  280 


280 


EMINENT  DOMAIN. 


CH.  XI. 


•SECTION  XI 


TJie  Time  Compensation  to  he  made. 


1.  Opinions  conflicting. 

2.  Chancellor  Kent's  definition. 
8.   That  of  the  Code  Napoleon. 

4.  Most  state  constitutions  require  it  to  be  con- 

current icith  the  taking. 

5.  English  cases  do  not  require  this. 


6.  Adequate  legal  remedy  sufficient. 

7.  Where  required,  payment  is  requisite  to 

vest  the  title. 

8.  Some  states  hold  that  no  compensation  is 

requisite. 


§  73.  1.  In  general,  railway  acts  require  compensation  to  be 
made,  before  the  company  take  permanent  possession  of  the 
land.^  And  it  has  even  been  made  a  question,  in  this  country, 
whether  the  legislature  could  give  a  railway  company  authority 
to  take  permanent  possession  of  lands,  required  for  their  use, 
previous  to  making  or  tendering  or  depositing,  in  conformity 
with  their  charter  or  the  general  law,  compensation  for  the 
same.^ 

2.  The  profound  and  sensible  author  of  the  Commentaries  on 
American  Law  ^  thus  states  the  rule  upon  this  subject :  "  The 
settled  and  fundamental  doctrine  is,  that  government  has  no  right 
to  take  private  property,  for  public  purposes,  without  giving  just 
compensation  ;  and  it  seems  to  be  necessarily  implied,  tliat  the 
indemnity  should,  in  cases  which  will  admit  of  it,  be  previously 
and  equitably  ascertained,  and  be  ready  for  reception,  concurrently, 
in  point  of  time,  with  the  actual  exercise  of  the  right  of  eminent 
domain." 

3.  The  language  of  the  Code  Napoleon  *  is  specific  upon  this 
point :  "  No  one  can  be  compelled  to  give  up  his  property  *  except 

>  Lands  Clauses  Consolidation  Act,  8  Vict.  c.  18,  §  84,  et  seq. ;  Ramsden  v. 
Manchester  &  S.  J.  &  A.  Railw.,  1  Exch.  723;  s.  c.  5  Railw.  C.  552.  In 
such  cases  courts  of  equity  will  enjoin  the  company  from  taking  possession 
until  compensation  is  made,  unless  the  owner  consent.  Ross  v.  E.  T,  &  S. 
Railw.,  1  Green's  Ch.  422. 

•  Thompson  v.  Grand  Gulf  Railw.  Co.,  3  Howard,  Miss.  240.  The  constitu- 
tion of  this  state,  however,  requires  a  previous  compensation  to  be  made.  See 
also  Cushman  r  Smith,  34  Maine,  247. 

3  2  Kent,  Comm.  340  (7th  ed.),  393,  and  note.  The  MUwaukee  &  M  Railw. 
Co.  V.  Eble,  4  Chandler,  72 ;  Cushman  v.  Smith,  34  Maine,  247. 

♦  Code  Napoleon,  Book  H.  Title  II.  545. 

♦  281,  282 


§  73.  THE  TIME  COMPENSATION   TO   BE   MADE.  281 

for  the  public  good,  and  for  a  just  and  previous  indemnity."     A 
similar  provision  existed  in  the  Roman  civil  law. 

4.  It  is  embodied,  in  different  forms  of  language,  into  the  writ- 
ten constitutions  of  most  of  the  American  states,  but  not  generally, 
in  terms  requiring  the  indemnity  concurrently  with  the  approprisr 
tion.  But  practically  that  view  has  generally  prevailed  in  the 
courts.^ 

•  Lyon  r.  Jerome,  26  Wend.  485,  497;  Opinion  of  Suiherland,  J.,  Case  v. 
Thompson,  6  Wend  634.  In  this  case  it  was  held,  that  it  was  not  indispensa- 
ble to  the  opening  of  a  road  over  the  land  of  an  individual,  that  the  price  should 
be  paid,  or  assessed  even,  before  the  opening  of  the  road.  And  in  Bonaparte  r. 
C.  &  A.  Ilailw.  Co.,  1  Bald.  C.  C.  205,  216,  it  was  held,  that  a  law  taking  private 
property  without  providing  for  compensation  was  not  void,  for  it  was  said,  that 
may  be  done  by  a  subsequent  law.  But  the  appropriation  was  enjoined,  in  that 
case,  till  compensation  should  be  made.  See  also  Gardner  v.  The  Village  of 
Newburgh,  2  Johns.  Ch.  162 ;  Henderson  v.  The  Mayor,  &c.  of  New  Orleans,  5 
Miller's  Louis.  416  ;  Rogers  v.  Bradshaw,  20  Johns.  735  ;  Duncan,  J.,  in  Eakin 
r.  Raub,  12  Serg.  &  R.  330,  366,  372;  O'Hara  v.  Lexington  Railw.,  1  Dana, 
232 ;  Hamilton  r.  Annapolis  &  Elkridge  Railw.  C.  1  Md.  Ch.  107 ;  Martin,  ex 
parit,  8  Eng.  (Ark.)  198.  In  Bloodgood  v.  The  Mohawk  &  Hudson  Railw. 
Co.,  14  Wend.  51,  it  is  held  that  this  constitutional  requirement  merely  con- 
templates a  legal  provision  for  compensation,  and  not  that  such  property  shall 
be  actually  paid  for  before  taken.  In  Boynton  v.  The  Peterboro'  and  Shirley 
Railw.  Co.,  4  Cush.  467 ;  1  Am.  Railw.  C.  595,  Shmc,  Ch.  J.  says,  "  The  right 
to  damages  for  land  taken  for  public  use  accrues  and  takes  effect  at  the  time  of 
taking,  though  it  may  be  ascertained  and  declared  afterwards.  That  time  in  the 
case  of  railroads,  prima  facie,  and  in  the  absence  of  other  proof,  is  the  time  of 
the  filing  of  the  location."  Charlestown  Branch  Railw.  v.  Middlesex,  7  Met- 
calf,  78;  8.  c.  1  Am.  Railw.  C.  383;  Davidson  ».  Boston  &  Maine  Railw.,  3 
Cush.  91. 

In  Massachusetts  the  remedy  is  limited  to  three  years  by  statute,  and  the  time 
begins  from  the  filing  of  the  location.  Charlestown  Branch  Railw.  v.  County 
Commissioners  of  Middlesex,  7  Met.  78 ;  8.  0.  1  Am.  Railw.  C.  383.  So  where  a  ' 
corporation,  after  locating  a  railway  over  a  wharf  more  than  sixt)'  feet,  and 
filing  the  location  with  the  county  commissioners,  agreed  with  the  owners  of  the 
wharf  to  extend  the  road  sixty  feet  on  and  over  the  same  before  a  certain  day, 
and  the  owners,  in  consideration,  agreed  to  demand  no  damages  for  the  extension, 
and  the  road  was  constructed  according  to  the  location  filed  before  the  agreement. 
Held,  that  this  was  not  an  agreement  not  to  extend  the  road  more  than  sixty  feet, 
and  that  the  owners  of  the  wharf  were  not  thereby  entitled  to  apply,  after  three 
years  from  the  filing  of  the  location,  for  an  estimate  of  the  damages  caused  by  an 
extension  of  the  road  more  than  sixty  feet  over  the  wharf.  lb.  By  the  New  York 
statute  of  1851,  railway  companies  have  no  right  to  enter  upon,  occupy,  or  cross 
a  turnpike  or  plank  road  without  consent  of  the  owners,  except  on  condition  of 
first  making  compensation  for  damages  to  such  turnpike  or  plank  road  company. 
Plank  Road  Co.  r.  Buffalo,  &c.  Railw.  Co.,  20  Barb.  644. 


282  EMINENT   DOMAIN.  CH.  XI. 

*  5.  It  was  held  in  one  case,*  where  the  act  of  parliament  gave 
the  right  to  take  lands  for  the  purpose  of  building  a  turnpike- 

Shaw,  Ch.  J.,  in  Boston  &  Providence  Railw.  Corporation  v.  Midland  Railw. 
Co.,  1  Gray,  340,  360,  says:  "The  effect  of  the  location  is  to  bind  the  land 
described  to  that  servitude,  and  to  conclude  the  land-owner  and  all  parties  hav- 
ing derivative  interests  in  it  from  denying  the  title  of  the  company  to  their  ease- 
ment in  it.  We  think,  therefore,  that  the  filing  of  the  location  is  the  taking  of 
the  land.  It  is  upon  that  the  owner  is  forthwith  entitled  to  compensation,  it  is 
that  act  which  gives  the  easement  to  the  corporation  and  the  right  to  have  dam- 
ages to  the  owner  of  the  land."  See,  also,  Drake  v.  Hudson  River  Railw.,  7 
Barb.  508,  552. 

In  those  states,  where  the  constitutions  contain  express  provisions  requiring  a 
previous  compensation  to  the  right  to  appropriate  the  land,  as  in  Pennsylvania, 
Wisconsin,  Kentucky,  and  Mississippi,  the  decisions  upon  this  point  would  not 
be  much  guide,  in  regard  to  the  general  rule,  in  the  absence  of  any  express  pro- 
vision of  the  kind.     But  see  Harrisburg  v.  Crangle,  3  Watts  &  Serg.  460. 

And  in  some  of  the  states,  even  where  a  concurrent  right  to  compensation, 
with  the  appropriation  of  the  land,  is  recognized,  it  seems  to  be  considered  by 
some  that  a  statute,  authorizing  the  appropriation  of  land  for  public  uses,  and 
which  makes  no  provision  for  compensation,  is  not  on  that  account  unconstitu- 
tional.    Opinion  of  the  Chancellor  in  Rogers  v.  Bradshaw,  20  Johns.  735. 

But  the  prevailing  opinion,  even  in  Xew  York,  seems  to  be,  that  the  statute 
shoidd  provide  some  available  remedy  for  adequate  compensation,  and  that  un- 
less that  is  done,  the  act,  if  not  positively  unconstitutional,  is  so  defective,  that 
no  proceedings  should  be  suffered  under  it,  until  compensation  is  secured,  and 
that  a  court  of  equity  should  interfere.  Gardner  ».  Newburgh,  2  Johns.  Ch. 
162 ;  Rexford  p.  Knight,  1  Keman,  308 ;  Willyard  v.  Hamilton,  7  Ham.  449 ; 
Rubottom  V.  McClure,  4  Blackf.  505 ;  McCormick  v.  Lafayette,  Smith  (Indi- 
ana), 83;  Mercer  v.  Mc Williams,  Wright,  132. 

Some  cases  have  made  a  distinction  (in  regard  to  the  necessity  of  a  previously 
ascertained  compensation  being  made  and  so  situated  as  to  be  capable  of  being 
made  available  to  the  owner  of  land,  concurrently  with  its  appropriation  to  pub- 
lic use)  between  ordinary  cases  and  that  class  of  cases  where  the  property  is 
put  to  the  use  of  the  state  directly,  and  that  in  such  cases  it  is  not  indispensable. 
Young  V.  Harrison,  6  G«o.  130. 

And  the  grant  of  the  right  to  bridge  a  navigable  river,  or  arm  of  the  sea,  or 
to  obstruct  the  flow  and  reflow  of  the  tide  upon  the  flats  of  private  persons,  al- 
though it  may  abridge  their  beneficial  use,  is  not  such  an  invasion  of  private 
property  as  to  entitle  the  party  to  compensation.  It  is  but  the  regulation  of 
public  rights,  and  if  private  persons  thereby  suffer  damage,  it  is  damnum  absque 
it\}uria.     Davidson  v.  Boston  &  Maine  Railw.,  3  Cush.  91.     See,  also,  upon  the 


*  Lister  r.  Lobley,  7  Ad.  &  Ellis,  124,  Lord  Denman  says :  "  The  amount  of 
compensation  cannot  generally  be  ascertained  till  the  work  is  done.  The  effect 
of  the  words  in  question  is  that  they  shall  not  do  it  without  being  liable  to  make 
compensation."  It  seems  to  have  been  supposed  here,  that  if  the  company  did 
not  make  compensation  they  might  be  conipeiled  to  do  so  by  mandamus. 
•283 


§  73.  THE  TIUE   COMPENSATION  TO   BE   MADE.  283 

*road,  making,  or  tendering  satisfaction,  that  this  need  not 
be  done  before,  or  at  the  time  of  entering  upon  or  taking  the 
lands. 

C.  But  this  subject  was  largely  discussed,  in  an  early  case  in 
New  York,"  and  finally  determined  by  the  court  of  errors  *  reversing 

subject  generally,  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346 ;  Phila- 
delphia &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  866 ;  2  Am.  Railw.  C.  325 ; 
Commonwealth  v.  Fisher,  1  Penn.  462,  and  ante,  §  68. 

But  it  is  very  generally  held,  that  in  the  absence  of  all  express  provision  by 
statute  in  regard  to  the  time  when  compensation  shall  be  made,  the  party  is  at 
all  events  entitled  to  have  it  ascertained  and  ready  for  his  acceptance,  concur- 
rently with  the  actual  appropriation  of  the  estate  to  public  use,  and  that  he  is  not 
obliged  to  wait  till  the  work  is  completed.  People  v.  Ilayden,  6  Hill  (N.  Y.), 
359 ;  Baker  v.  Johnson,  2  Hill,  342. 

But  no  right  to  compensation  vests  in  the  land-owner  till  the  acceptance  and 
confirmation  of  the  appraisal  by  the  proper  tribunal,  under  any  statutory  pro- 
visions, in  most  of  the  American  states,  and  until  that,  the  company  may  change 
the  location  of  their  road,  and  abandon  proceedings  pending  against  land-owners, 
on  the  first  surveyed  route,  by  paying  costs  already  assessed.  Hudson  River 
Railw.  V.  Cutwater,  3  Sandf.  Sup.  Ct.  689. 

And  where  the  statute  of  the  state  provides  that  no  valuation  of  property 
taken  for  railway  and  canal  purposes  need  bo  made  before  taking  possession  of 
the  same,  in  those  cases  where  the  property  is  not  obscured,  so  that  its  value 
cannot  be  judged  of,  it  was  held  there  should  be  no  unreasonable  delay  in  having 
the  valuation  made.     Compton  r.  Susquehannah  Railw.,  3  Bland.  Ch.  386. 

^  Bloodgood  r.  M.  &  H.  lUilw.  Co.,  14  Wend.  51 ;  8.  c.  18  id.  9,  59.  See, 
also,  upon  this  subject,  Fletcher  v.  Auburn  &  Syracuse  Railw.,  25  Wend.  462; 
Smith  c.  Helmer,  7  Barb.  416;  Pittsburgh  v.  Scott,  1  Penn.  St.  309;  People  v. 
Michigan  Southern  Railw.,  8  Gibbs,  496.  In  this  case  it  is  said  the  party  who 
makes  no  application  for  compensation  for  many  years  should  be  regarded  as 
having  waived  all  claim.  Id.  p.  606.  See,  also.  Smith  r.  McAdam,  3  Gibbs," 
506.  And  where  the  statute  provided  for  depositing  the  value  of  the  land  taken 
before  entrj*  upon  it,  it  was  held  this  was  a  provision  for  the  security  of  the  land- 
owner, and  might  be  waived  by  him  ;  and  if  so,  and  entrj-  was  made  by  the  com- 
pany without  making  the  deposit,  he  might  recover  the  assessment  in  an  action 
of  debt.  Smart  v.  Railway,  20  N.  H.  233.  But  in  one  case  it  was  held  indis- 
pensable to  the  validity  of  the  power,  that  the  party,  whose  land  was  taken 
should  have  something  more  than  a  right  of  action  for  the  value  of  his  land. 
Shepardson  r.  M.  &  B.  Railw.,  6  Wisconsin,  605.  See  Powers  c.  Bears,  12  id, 
213;  Ford  v.  Ch.  &  N.  W.  Railw.  Co.,  14  id.  609. 

And  by  the  construction  of  the  statute  of  Maine,  a  railway  corporation,  as  soon 
as  their  track  is  located,  may  take  immediate  possession,  and  the  land-owner, 
failing  to  agree  with  the  company,  as  to  the  amount  of  damages  may  apply  to 
the  courts  to  have  the  same  assessed,  and  thereupon  the  company  are  required 
to  pay  or  give  security  for  the  same,  and  their  right  of  possession  is  suspended 
until  the  requirement  is  complied  with ;  but  no  action  of  trespass  lies  in  such 

•  284,  285 


284  EMINENT  DOMAIN.  CH.  XI. 

the  judgment  of  the  court  below,  that  if  provision  was  made  for 
compensation  in  the  act,  giving  power  to  take  the  lands,  it  was  not 
indispensable  that  the  amount  should  be  actually  ascertained  and 
paid  before  the  appropriation  of  the  property. 

7.  In  Mississippi  it  is  required,  by  the  constitution  of  the  state, 
that  the  compensation  be  paid  before  the  right  to  use  the  land  is 
vested.^  So  also  in  Georgia  the  title  does  not  vest  in  the  *  company 
until  the  ascertained  compensation  is  paid  or  tendered.^  A  similar 
decision  was  made  by  the  Supreme  Court  of  the  United  States,^^ 
where  the  charter  of  the  company  provided  that  the  payment,  or 
tender,  of  the  valuation,  should  vest  the  estate  in  the  company,  as 

cases.  Davis  v.  Russell,  47  Me.  443.  Where  by  statute  a  bond  is  required  to 
be  filed  by  the  company  to  secure  damages  to  the  land-owner,  upon  failure  of 
the  parties  to  agree  upon  the  amount,  such  bond  extends  to  all  the  lawful  dam- 
age caused  to  the  owner  by  the  construction  of  the  company's  works ;  and  the 
fact  of  its  being  approved  and  ordered  to  be  filed  is  presumptive  proof  that  the 
parties  had  failed  to  agree.  Wadhams  v.  Lackawanna  &  Blooms.  Railw.  Co., 
42  Penn.  St.  303. 

But  in  most  of  the  states  the  assessment  of  the  damages  due  to  the  land-owner, 
and  the  payment,  tender,  or  deposit  of  the  same,  is  held  a  condition  precedent 
to  the  right  of  entry  upon  the  land,  and  the  company  entering  before  this  will, 
prima  facie,  be  regarded  as  trespassers.  Memphis  &  Charleston  Railw.  Co.  v. 
PajTie,  37  Miss.  700 ;  Henry  v.  Dubuque  &  Pacific  Railw.,  10  Iowa,  640 ;  Evans 
V.  Haefner,  29  Mo.  141 ;  Burns  v.  Dodge,  9  Wis.  458. 

In  McAulay  v.  Western  Vermont  Railw.  Co.,  33  Vt.  311,  it  was  decided 
that  the  payment  of  land  damages  was  a  condition  precedent  to  the  acquiring  of 
title  by  a  railroad  company  of  lands  taken  for  their  road.  But  that  where  the 
land-owner  acquiesces  in  the  occupation  of  his  land  for  the  construction  of  a 
railway  without  prepayment  of  land  damages,  upon  a  contract  or  understanding 
for  future  pajTnent  by  the  company,  and  the  road  is  constructed  and  put  in  oper- 
ation, he  cannot  afterwards,  on  failure  to  obtain  payment,  maintain  trespass 
or  ejectment  for  the  land.  And  whether,  under  such  circumstances,  he  would 
still  retain  an  equitable  lien  on  the  land,  seems  doubtful.  The  mere  prosecution 
of  a  controversy  by  the  land-owner  with  the  company,  before  commissioners  or 
on  appeal,  as  to  the  amount  of  the  damages,  is  not  such  a  prohibition  of  the  tak- 
ing of  the  land  by  the  company  without  prepa^Tnent  of  land  damages  as  is  neces- 
sary to  enable  the  land-owner  to  maintain  trespass  or  ejectment  for  the  land  after 
the  road  is  put  in  operation.  Nor  will  notice  to  the  laborers  on  the  railway 
employed  by  the  contractor  be  considered  as  suflicient  to  entitle  the  land-owner 
to  maintain  trespass  or  ejectment  against  the  company,  the  company  not  being 
affected  by  such  notice. 

*  Stewart  v.  Raymond  Railw.  Co.,  7  Smedes  &  M.  668.  See  also  Thomp- 
son r.  Grand  Gulf  Railw.,  3  Howard  (Miss.),  240. 

'  Hoe  r.  The  Georgia  Railw.  Banking  Co.,  1  Kelly,  524. 

'"  Baltimore  &  Susquehanna  Railw.  Co.  v.  Nesbit,  10  How.  395. 
*286 


§  73.  THE  TIME   COMPENSATION  TO   BE   MADE.  285 

fully  as  if  it  had  been  conveyed.     And  a  similar  decision  was  also 
made  by  the  Supreme  Court  of  Vermont." 

8.  In  one  case  in  North  Carolina,^  it  was  held  that  compensa- 
tion need  not  be  made  prior  to  appropriating  land  for  public  use. 
The  constitution  of  the  state  is  said  to  contain  no  prohibition 
against  taking  private  property  for  public  use,  without  compensa- 
tion. And  the  same  is  true  of  the  constitution  of  South  Carolina. 
And  the  latter  state  held  ^*  that  private  property  might  be  taken 
without  compensation.  But  this  decision  is  certainly  at  variance 
with  the  generally  received  notions  upon  that  subject,  since  the 
period  of  the  Roman  Empire. 

"  Stacey  r.  Vermont  Central  Railw.  Co.  27  Vt.  39.  The  opinion  of  Isham, 
J.,  in  this  case,  will  show  the  correlative  rights  of  the  company  and  land-owner, 
and  by  what  act  the  right  of  each  becomes  perfected.  Where  the  statute  re- 
quires the  company  to  contract  in  writing,  it  is  not  competent  to  show  title  in 
any  other  mode,  unless  by  formal  conveyance.  Harborough  v.  Shardlow,  2 
Railw.  C.  253 ;  7  M.  &  W.  87.  In  Graff  p.  The  City  of  Baltimore,  10  Md.  644, 
it  was  held,  under  a  statute  for  enabling  the  city  to  supply  pure  water,  and 
to  take  land  upon  valuation  by  a  jur}*,  and  compensation  to  the  owners,  and 
that  where  "such  valuation  is  paid,  or  tendered,  to  the  owner  or  owners"  of 
the  property,  it  "  shall  entitle  the  city  to  the  use,  estate,  and  interest  in  the 
same,  thus  valued,  as  fully  as  if  it  had  been  conveyed  by  the  owners ;  "  that  the 
city  is  not  bound  by  the  mere  inquisition  and  judgment  thereon,  but  could  right- 
fully abandon  the  location ;  and  that  payment,  or  tender,  under  the  statute,  was 
indispensable  to  the  vesting  of  the  title.  But  it  was  held,  that  the  city  may  be 
made  liable,  in  another  form  of  proceeding,  to  the  land-owner,  for  any  loss  or 
damage  he  may  have  sustained,  by  reason  of  the  conduct  of  the  municipal  author- 
ity in  the  premises. 

"  R.  &  G.  Railw,  Co.  ».  Davis,  2  Dev.  &  Bat.  461.  But  in  New  Jersey  it 
was  held  that  the  8uper\'isors,  in  laying  out  roads,  are  bound  to  award  damages 
to  land-owners,  with  their  return,  or  the  whole  proceeding  is  illegal  and  void. 
State  p.  Garretson,  3  Zab.  388. 

"  State  V.  Dawson,  3  Hill,  (S.  C),  100.  In  this  case  Mr.  Justice  Richard- 
son dissents  from  the  decision  of  the  court,  and  it  is  generally  allowed  that  his 
opinion  contains  the  better  law.  His  argument,  in  the  language  of  the  author  of 
the  Commentaries,  vol.  2,  ubi  supra,  "was  very  elaborate  and  powerful."  See 
Louisville  Railw.  Co.  r.  Chappell,  1  Rice,  383 ;  Lindsay  r.  The  Commissioners, 
2  Bay,  38. 


286 


EMINENT  DOMAIN. 


CH.  XI. 


♦SECTION  XII 


Appraisal  includes  Consequential  Damages. 


1.  Consequential  damage  barred. 

2.  Such  as  damage,  by  blasting  rock. 

3.  But  not  where  other  land  is  used  unneces- 

sarily. 

4.  But  loss  byjires,  obstruction  o/ access,  and 

cutting  offsprings,  is  barred. 

5.  Loss  by  flowing  land  not  barred. 


6.  Damages,  from  not  building  upon  the  plan 

contemplated,  are  barred. 

7.  Special  statutory  remedies  reach  such  dam- 

ages. 

8.  Exposure  of  land  to  fires. 

9.  No  action  lies  for  damage  sustained  by  the 

use  of  a  railway. 


§  74.  1.  It  is  requisite  that  the  tribunal  appraising  land  dam- 
ages, for  lands  condemned  for  railways,  should  take  into  considera- 
tion all  such  incidental  loss,  inconvenience,  and  damage,  as 
may  reasonably  be  expected  to  result  from  the  construction  and 
use  of  the  road,  in  a  legal  and  proper  manner.  And  as  all  tribu- 
nals, having  jurisdiction  of  any  particular  subject-matter,  are 
presumed  to  take  into  consideration  all  the  elements  legally  con- 
stituting their  judgments,  such  incidental  loss  and  damage  will 
be  barred,  by  the  appraisal,  whether  in  fact  included  in  the  esti- 
mate or  not. 

2.  Hence  damage  done  by  the  contractors  to  the  remaining 
land,  by  blasting  rocks,  in  the  course  of  construction,  has  been 
held  to  be  barred,  as  included  in  the  estimated  compensation  for 
the  land  taken. ^ 

*  Dodge  V.  The  County  Commissioners,  3  Met.  380 ;  Sabin  v.  Vermont  Cen- 
tral Railw.,  25  Vt.  363;  Dearborn  v.  Boston,  Concord,  &  Montreal  Railw.,  4 
Foster,  179,  187  ;  Wbitehouse  v.  Androscoggin  Railw.,  52  Me.  208.  But  in  Hay 
V.  Cohoes  Company,  2  Comst.  159,  the  defendants,  a  corporation,  dug  a  canal 
upon  their  own  land,  for  the  purposes  authorized  by  their  own  charter.  In  so 
doing,  it  was  necessary  to  blast  rocks,  and  the  fragments  were  thrown  against 
and  injured  the  plaintiff's  dwelling,  upon  land  adjoining,  and  it  was  held  the  de- 
fendants were  liable  to  a  special  action  for  the  injury,  although  no  negligence  or 
want  of  skill  was  alleged  or  proved:  and  in  Tremain  r.  Cohoes  Company, 
2  Comst.  163,  a  precisely  similar  action,  it  was  held  that  evidence  to  show  the 
work  done  in  the  most  careful  manner  was  inadmissible,  there  being  no  claim  for 
exemplary  damages. 

But  there  is  probably  an  essential  difference  between  the  case  of  a  railway,  in 
the  construction  of  wliich  blasting  rocks  is  almost  indispensable,  and  that  of  a 
manufacturing  company,  or  other  proprietor,  who  may  find  it  convenient  to  blast 
rocks  ui>on  his  premises,  to  increase  their  utility'  or  beauty.  But  for  doing  what 
the  act  does  not  authorize,  or  doing  what  it  does  authorize,  improperly,  a  raU- 
•287 


§  74.  APPRAISAL   INCLUDES  CONSEQUENTIAL   DAMAGES.  287 

*  3.  But  it  was  held  that  this  did  not  preclude  the  land-owner 
from  recovering  damages  for  using  land  adjoining  the  land  taken 

way  company  is  liable  to  an  action.     Turner  v.  Sheffield  &  R.  Railw.,  10  M.  & 
W.  425. 

In  Carman  r.  Steubenville  &  Ind.  Railw.,  4  Ohio  N.  S.  899,  it  seems  to  be  taken 
for  granted,  that  throwing  fragments  of  rook,  by  blasting,  upon  the  land  of  ad- 
joining proprietors,  is  an  actionable  injur}*,  and  as  in  this  case  it  was  done  by  the 
contractor  in  the  performance  of  his  contract,  in  the  manner  stipulated,  the  com- 
pany were  held  liable. 

The  result  of  the  cases  would  seem  to  be,  that  where  the  damage  done,  by 
blasting  rocks,  or  in  any  similar  mode,  in  the  course  of  the  construction  of  a  rail- 
way, is  done  to  land,  a  portion  of  which  is  taken  by  the  company  under  compul- 
sory powers,  this  damage  will  not  lay  the  foundation  of  an  action,  in  any  form,  as 
it  should  be  taken  into  account  in  estimating  the  compensation  to  the  land-owner 
for  the  portion  of  land  taken.  Brown  v.  Prov.,  Warren,  «&  Bristol  Railw.,  6 
Gray,  35.  And  if  not  included  in  the  appraisal,  it  is  nevertheless  barred.  Dodge 
V.  County  Commissioners,  aupra. 

But  if  the  damage  is  done  to  land,  no  part  of  which  is  taken,  and  where  no 
land  of  the  same  owner  is  taken,  it  may  be  recovered,  under  the  statute,  if  pro- 
vision is  made  for  giving  compensation  for  consequential  damage,  or  where  lands 
are  *'  injuriously  affected."  But  if  the  statute  contain  no  such  provision,  the  only 
remedy  will  be  by  a  general  action.  And  in  this  view  many  of  the  cases  cited 
above  seem  to  assume,  that  blasting  rocks,  by  an  ordinary  proprietor  of  land,  is 
a  nuisance  to  adjoining  proprietors  if  so  conducted  as  to  do  them  serious  damage. 
And  this  is  the  ground  upon  which  the  case  of  Carman  v.  Stubenville  &  Ind. 
Railw.  is  decided,  without  much  examination  of  this  point,  indeed,  and  by  a 
divided  court.  But  if  a  railway  is  not  liable  for  necessarj-  consequential  damage, 
unless  the  statute  gives  a  remedy  (post,  §  76),  it  may  perhaps  be  questioned  how 
far  a  recovery  could  be  maintained,  in  a  general  action  for  damage  done  by 
blasting  rocks,  as  that  is  confessedly  within  the  range  of  their  powers.  See 
opinion  of  Shaw,  Ch.  J.,  in  Dodge  v.  County  Commissioners,  3  Met.  380:  "  Aa 
authority  to  construct  any  public  work  carries  with  it  an  authority  to  use  the 
appropriate  means.  An  authority  to  make  a  railway  is  an  authority  to  reduce 
the  line  of  the  road  to  a  level,  and  for  that  purpose  to  make  cuts,  as  well  through 
ledges  of  rock  as  through  banks  of  earth.  In  a  remote  and  detached  place, 
where  due  precaution  can  be  taken  to  prevent  danger  to  persons,  blasting  by 
gunpowder  is  a  reasonable  and  appropriate  mode  of  executing  such  a  work ; 
and,  if  due  precautions  arc  taken  to  prevent  unnecessar}'  damage,  is  a  justifiable 
mode.  It  follows  that  the  necessary  damagb  occasioned  thereby  to  a  dwelling- 
house  or  other  building,  which  cannot  be  removed  out  of  the  way  of  such  danger, 
is  one  of  the  natural  and  unavoidable  consequences  of  executing  the  work,  and 
within  the  provisions  of  the  statute. 

'*  Of  course,  this  reasoning  will  not  apply  to  damages  occasioned  by  careless- 
ness or  negligence  in  executing  such  a  work.  Such  careless  or  negligent  act 
would  be  a  tort,  for  which  an  action  at  law  would  lie  against  him  who  commits, 
or  him  who  commands  it.  But  where  all  due  precautions  are  taken,  and  damage 
is  still  necessarily  done  to  fixed  property,  it  is  alike  within  the  letter  and  the 

•288 


288  EMINENT  DOMAIN.  CH.  XI. 

*  for  a  cart-way,  where  six  rods  were  allowed  to  be  taken  by  the 
company  throughout  the  line  of  the  road,  which  would  give  ample 
space  for  cart-ways  upon  the  land  taken.^  But  it  was  held,  in 
another  case,  that  the  company  were  not  liable  for  entering  upon 
the  adjoining  lands,  and  occupying  the  same  with  temporary  dwell- 
ings, stables,  and  blacksmith  shops,  provided  no  more  was  taken 
than  was  necessary  for  that  purpose.^ 

4.  So  it  is  settled  that  the  appraisal  of  land  damages  is  a  bar  to 
claims  for  injuries  by  fire,  from  the  engines  obstructing  access  to 
buildings,  exposing  persons  or  cattle  to  injury,  and  many  such 
risks.*  And  it  will  make  no  diflference,  that  the  damages  were  not 
known  to  the  appraisers,  or  capable  of  anticipation  at  the  time  of 
assessing  land  damages  ;  ^  as  where  a  spring  of  water  is  cut  off  *  by 
an  excavation  for  the  bed  of  a  railway  fifteen  feet  *  below  the  surface, 
from  which  the  plaintiff's  buildings  had  been  supplied  with  water. 

equity  of  the  statute,  and  the  county  commissioners  have  authority  to  assess  the 
damages.  This  court  are  therefore  of  opinion,  that  an  alternative  writ  of  man- 
damus be  awarded  to  the  county  commissioners,  to  assess  the  petitioners'  dam- 
ages, or  return  their  reasons  for  not  doing  so."  See  also  Pottstown  Gas  Co.  ». 
Murphy,  39  Penn.  St.  257  ;  Whitehouse  v.  Androscoggin  Railw.,  supra.  In  the 
latter  case  it  was  held  that  the  damage  resulting  to  the  land-owner,  for  not  re- 
moving the  stone  thrown  upon  land  adjoining  that  taken,  could  not  be  taken 
into  account  in  estimating  damages,  since  it  was  presiunable  the  company  would 
remove  them  in  proper  time,  according  to  their  duty ;  and,  if  they  did  not,  the 
remedy  would  be  by  special  action. 

*  Sabin  v.  Vermont  Central  Railw.,  25  Vt.  363. 

'  Lauderbrun  v.  Dufify,  2  Penn.  St.  398.  But  it  seems  questionable  whether 
this  case  can  be  maintained  as  a  general  rule. 

But  if  a  party  is  entitled  to  compensation  for  injuries  of  this  kind,  as  where 
his  lands  adjoining  the  railway,  and  no  part  of  which  is  taken,  are  injuriously 
affected,  as  by  blasting  rocks,  his  only  remedy  is  under  the  statute.  Dodge  ». 
County  Commissioners,  3  Met.  380. 

*  Phila.  &  Reading  Railw.  v.  Yeiser,  8  Penn.  St.  366 ;  s.  c.  2  Am.  Railw.  C. 
325 ;  Aldrich  v.  Cheshire  Railw.,  1  Foster,  359 ;  s.  c.  1  Am.  Railw.  C.  206 ; 
Mason  v.  Kennebec  &  Port.  Railw.,  31  Maine,  215.  See  also  Furniss  v.  Hud- 
son River  Railwi,  5  Sand.  551 ;  Huyett  v.  Phil.  &.  Read.  Railw.,  23  Penn.  St. 
873;  ajiie,  §§  71,  72.  See  also  Lafayette  Plank  Road  Co.  v.  New  Albany,  &c. 
Railw.  Co.,  13  Ind.  90. 

*  Aldrich  v.  Cheshire  Railw.,  stipra.  But  see  Lawrence  r.  Great  Northern 
Railw.,  16  Q.  B.  643 ;  8.  c.  4  Eng.  L.  &  Eq.  265. 

So,  also,  where  the  company's  works  cut  off  a  spring  of  water,  below  high- 
water  mark,  on  a  navigable  river,  it  was  held  the  riparian  pwner  was  entitled  to 
claim  damages  of  them  on  that  account,  in  a  proceeding  under  the  statute.     Le- 
high Valley  Railw.  v.  Trone,  28  Penn.  St.  206. 
•  289,  290 


§  74.  APPRAISAL  INCLUDES   CONSEQUENTIAL   DAMAGES.  289 

6.  But  it  was  held,  that  where,  in  the  construction  of  a  canal, 
with  waste  weirs,  erected  by  direction,  and  under  the  inspection 
of  the  commissioners  appointed  to  designate  the  route  of  the 
canal,  with  all  the  works  connected  therewith,  and  to  appraise 
damages,  the  waste  water,  after  flowing  over  the  land  of  adjoining 
proprietors,  flowed  upon  the  land  of  the  plaintiff",  and  thereby 
greatly  injured  it,  that  he  was  entitled  to  recover  damages.* 
But  the  occasional  flow  of  land  by  water  caused  by  public  works 
is  to  be  estimated  as  part  of  the  damages  under  the  £uglish 
statute." 

6.  And  where  the  appraisal  of  land  damages  is  reduced  below 
*  what  it  otherwise  would  have  been,  by  the  representations  of  the 
agents  of  the  company  that  the  road  would  be  constructed  in  a 
particular  manner,  made  at  the  time  of  the  appraisal  to  the  com- 

•  Hooker  r.  New  Haven  &  Northampton  Co.,  14  Conn.  146 ;  8.  c.  15  Conn. 
312. 

But  in  such  case,  the  owner  of  property  overflowed  by  water,  through  the 
defective  construction  of  a  railway,  is  bound  to  use  reasonable  care,  skill,  and 
diligence,  adapted  to  the  occasion,  to  arrest  the  injury,  and  ii'  he  do  not,  not- 
withstanding the  first  fault  was  on  the  part  of  the  company,  he  must  be  regarded 
as  himself  the  cause  of  all  damage,  which  he  might  have  prevented  by  tlie  use 
of  such  care,  diligence,  and  skilL  Chase  r.  The  N.  Y.  Central  Kailw.,  24  Barb. 
273. 

The  same  rule  was  adopted  by  a  special  referee,  in  Lemmex  v.  A'ermont  Cen-  \ 
tral  iiailw.,  in  regard  to  damage  to  wool,  by  being  exposed  to  rain  at  une  of  the 
company's  stations,  through  the  fault  of  the  agents  of  the  company,  where  the 
owner  did  not  remove  it,  as  soon  after  he  obtained  knowledge  of  its  condition, 
or  take  as  effective  measures  to  arrest  the  injury,  as  he  reasonably  should  have 
done.  It  was  held  the  company  were  only  liable  for  such  damage  as  necessarily 
resulted  from  their  own  fault,  and  beyond  that  the  plaintiff  must  be  regarded  as 
the  cause  of  his  own  loss.     See  also  post,  §  180. 

The  assessment  of  compensation  for  land  taken  for  a  railway  covers  all  dam- 
ages, whether  foreseen  or  not,  and  whether  actually  estimated  or  not,  which  ^ 
result  from  the  proper  construction  of  the  road.  But  the  company  are  liable  to 
an  action  for  damages  resulting  to  any  one  from  the  defective  construction  of 
their  road.  In  the  present  case  the  plaintiff's  meadows  were  injured,  in  conse- 
quence of  the  insuflicieut  culverts  in  the  defendant's  road,  there  being  no  im- 
pediment to  the  construction  of  proper  ones.  Suitable  bridges  and  culverts  to 
convey  the  water  across  the  railway,  at  or  near  the  places  where  it  naturally  \ 
flows,  are  necessary  to  the  proper  construction  of  the  road,  except  where  they 
cannot  be  made,  or  where  the  expense  of  making  them  is  greatly  disproportionate 
to  the  interests  to  be  preserved  by  them.  Johnson  r.  At.  &  St.  Law.  iiailw.,  3d 
N.  U.  669. 

^  Ware  v.  Regent's  Canal  Co.,  S  De  6.  &  J.  212. 

19  •  291 


290  EMINENT  DOMAIN.  CH.  XI. 

missioners,  and  which  representations  are  not  fulfilled  in  the 
actual  construction  of  the  road,  whereby  the  plaintiff  sustained 
serious  loss  and  injury,  it  was  held,  that  the  adjudication  of  the 
commissioners  was  a  merger  of  all  previous  negotiations  upon  tlie 
subject,  and  that  no  action  could  be  maintained  for  constructing 
the  railway  contrary  to  such  representations,  provided  it  was  done 
in  a  prudent  and  proper  manner.^ 

7.  But  where  no  part  of  the  plaintiff's  land  is  taken,  and  the 
statute  gives  all  parties  suffering  damage  by  the  construction  of 
railways  the  right  to  recover,  as  in  England,  and  some  of  the 
American  states,  and  the  water  is  drawn  off  from  plaintiff's  well 
upon  lands  adjoining  the  railway,  he  may  recover.^  So,  too,  may 
the  proprietor  of  a  mill-pond  recover  damages,  sustained  by  the 
construction  of  a  railway  across  the  same,  although  the  dam 
was  authorized  by  the  legislature,  upon  a  navigable  river ;  and 
in  constructing  it,  the  conditions  of  the  act  were  not  complied 
with.w 

8.  But  it  has  been  held  that  the  appraisers  are  not  to  estimate 
increased  damages  to  a  land-owner  in  consequence  of  the  ex- 
posure of  the  remaining  land  to  fires  by  the  company's  engines.^^ 

"  Butman  r.  Vt.  C.  Railw.  Co.,  27  Vt.  500.  See  also  Railw.  Co.  r.  Washing- 
ton, 1  Rob.  67;  B.  &  S.  Railroad  Co.  v.  Compton,  2  Gill,  20,  28;  ante,  §  71; 
Kyle  V.  Auburn  &  Roch.  Railw.,  2  Barb.  Ch.  489.  But  see  Wheeler  v.  Roch.  & 
Sy.  Railw.,  12  Barb.  227,  where  it  is  held  that  a  railway  company  will  be  en- 
joined from  building  a  road-crossing  at  a  different  place  from  that  named  at  the 
time  damages  were  assessed.  But  it  has  been  held,  that  it  was  competent  for 
the  company  to  show,  by  experts,  the  necessity  of  putting  a  culvert  through  an 
embankment,  at  a  particular  point,  in  order  to  preserve  the  work,  as  an  answer 
to  a  claim  for  damages  on  account  of  the  prospective  obstruction  of  the  water, 
and  setting  it  back  upon  the  land  at  that  point,  by  the  embankment.  But  it 
should  be  shown  that  such  culvert  is  absolutely  indispensable,  before  any  de- 
duction can  be  made  on  that  account,  unless  the  company  are  in  some  legal 
way  boimd  to  make  it.  The  company  are  not  estopped  from  proving  this 
necessity  because  the  plat  of  the  location  of  the  road  does  not  indicate  a  culvert 
at  that  point.  Nason  r.  Woonsocket  Union  Railw.,  4  Rhode  Island,  377.  Pt^t, 
§  93. 

'  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 

><»  White  V.  South  Shore  Railw.,  6  Cush.  412. 

"  Sunbury  &  Erie  Railw.  v.  Hummel,  27  Penn.  St.  99,  Lewis,  Ch.  J.,  and 
Black,  J.,  dissenting.  The  general  current  of  authority  seems  to  us  with  the 
minority  of  the  court.  And  in  Lehigh  Valley  Railw.  t".  Lazarus,  28  Penn.  St. 
203,  the  case  of  Yeizer,  8  Penn.  St.  366,  ante,  n.  4,  is  regarded,  by  the  reporter 
of  that  state,  as  overruled.     But  in  an  action  of  trespass  against  a  railway  com- 


§  74.  APPRAISAL  INCLUDES   CONSEQUENTIAL  DAMAGES.     •         291 

*  Nor  can  any  common-law  action  be  sustained  for  such  damage 
unless  where  actual  loss  intervenes  through  the  negligence  of  the 
company." 

pany  for  constructing  their  road  through  plaintifTs  land,  and  thereby  preventing 
his  cattle  thriving,  this  latter  injury  is  not  so  remote  a  consequence  of  the  act 
diarged  that  it  may  not  be  made  a  ground  of  claiming  damage,  when  specially 
alleged  in  the  declaration.  Baltimore  &  Ohio  R.  r.  Thomson,  10  Md.  76.  If 
we  understand  the  ground  assumed  by  the  court  in  Pennsylvania,  at  the  present 
time,  it  is,  that  an  injury  to  buildings,  standing  near  the  line  of  a  railway,  by  fire 
from  the  companies'  engines,  when  properly  constructed  and  prudently  managed, 
is  too  remote  and  uncertain  to  form  an  element  in  estimating  damages  to  the 
land-owner,  either  when  part  of  the  land  is  taken,  or  the  statute  provides  for 
damages  to  all  persons  "  injuriously  affected'"  by  the  company's  works.  We  are 
entirely  conscious  of  the  embarrassment  attending  all  attempts  to  define  the 
class  of  injuries,  which  do,  or  which  do  not,  come  within  the  rule  of  legal  conse- 
quential injuries,  by  the  construction  or  operation  of  railways.  But  it  seems 
important  to  distinguish  between  a  railway,  as  one  of  the  legitimate  uses  to  which 
the  proprietor  of  land  might  put  it,  for  the  purpose  of  private  transportation, 
and  upon  which  he  might  no  doubt  use  locomotive  steam  engines,  and  the  use  of 
such  engines  upon  a  public  railway. 

In  the  former  case  the  land-owner  would  not  be  liable  to  an  adjoining  pro- 
prietor except  for  want  of  care,  skill,  or  prudence  in  the  construction  or  use  of 
his  engines.  The  same  would  probably  be  true  of  a  public  company,  if  the 
legislature  did  not  subject  them  to  any  consequential  damage  resulting  from 
the  nature  of  their  business.  But  where  they  are,  as  in  England,  and  many  of 
the  American  states,  made  liable,  either  as  part  of  the  price  of  land  taken,  or  as 
a  distinct  ground  of  claim,  to  all  consequential  damage  caused  to  the  land-owner, 
both  by  the  construction  and  operation  of  their  road,  or  either  of  them,  in  a 
prudent  and  proper  manner,  it  seems  difficult  to  escape  the  conclusion,  that  the 
exposure  of  property  along  the  line  of  a  railway  to  loss  by  fires  communicated 
by  the  company's  engines,  is  one  of  the  most  direct  sources  of  consequential 
injur)'  which  can  be  imagined.  It  is  more  direct  and  substantial  than  that  from 
noise,  dirt,  dust,  smoke,  and  vibration  of  the  soil,  all  which,  under  circumstances, 
have  been  held  proper  elements  of  damage  to  be  considered.  Perhaps  none  of 
them  are  absolutely  grounds  of  giving  damage  in  all  cases.  That  depends  very 
much  upon  the  nearness  of  the  track  to  the  land.  And  other  circumstances 
may  perhaps  deserve  consideration,  in  many  cases.  But  where  the  track  passes 
directly  through  lands,  near  where  buildings  are  already  erected,  it  is  difficult 
to  conjecture  upon  what  ground  it  could  be  claimed,  that  the  increased  exposure 
to  fire  was  not  a  serious  detriment  to  the  owner.  It  is  certain  it  nuist  very  seri- 
ously enhance  the  rate  of  insurance,  and  proportionally  diminish  the  value  of  the 
rent,  and  of  the  buildings. 

As  was  said  by  Shaw,  C.  J.,  Proprietors  of  Locks  &  Canals  r.  Nashua  & 
Lowell  Kailw.,  10  Cush.  885,  it  is  incumbent  upon  one  who  claims  damage 
on  this  ground,  to  show  that  the  company's  track  ran  so  near  his  buildings 
♦'  as  to  cause  imminent  and  appreciable  danger  by  fire."  When  it  is  undertaken 
to  be  decided,  as  a  question  of  law,  that  in  no  case  is  danger  from  fire,  by  the 

♦  292 


292  EMINENT  DOMAIN.  CH.  XI. 

*  9.  In  a  recent  English  case  ^^  it  was  held,  after  extended  argu- 
ment and  careful  consideration,  that  the  owner  of  a  house  situated 
close  to  a  railway,  and  which  suffers  depreciation  in  value  from 
vibration  and  smoke,  not  caused  by  any  negligent  user  of  the 
railway,  but  being  the  inevitable  result  of  the  ordinary  user,  has 
no  right  to  compensation  under  the  English  statute,  or  by  dis- 
tinct action  at  law.  The  case  is  put  upon  the  ground  that  the 
legislature  having  legalized  the  use  of  locomotive  steam  engines 
by  railway  companies,  adjoining  proprietors  must  submit  to  the 
inevitable  consequences  of  a  lawful  business,  however  incon- 
venient it  may  become  ;  and  can  sustain  no  action  for  damages 
any  more  than  for  the  exercise  of  any  other  legal  business  which 
might  depreciate  the  value  of  property  in  tlie  neighborhood. 
The  English  statutes  are  construed  to  give  compensation  only 
for  injuries  sustained  by  construction  and  not  by  the  use  of  a 
railway. 

proper  use  of  the  company's  engines,  to  be  considered  in  estimating  land  dam- 
ages, it  is  certainly  contrary  to  the  general  course  of  decisions  upon  the  subject, 
if  not  to  the  very  principle  upon  which  such  companies  have  been  subjected  to 
such  damages  as  they  cause  to  land-owners,  beyond  what  accrues  from  the  ordi- 
nary use  of  lands  for  building  and  agricultural  purposes.  These  decisions  in 
Pennsylvania  are  still  maintained  there,  and  the  rule  has  been  applied  to  the  case 
of  buildings  where  the  owner  is  compelled  to  pay  a  higher  rate  of  insurance  in 
consequence  of  the  proximity  of  the  railway.  Patten  t'.  Northern  Central  Railw., 
33  Penn.  St.  426.  It  is  here  maintained  that  any  claim  for  damages  in  con- 
sequence of  the  mere  intrusion  of  noise  and  bustle  upon  one's  seclusion  is  essen- 
tially anti-social,  and  at  war  with  the  fundamental  laws  of  society,  which  we 
should  not  be  inclined  to  question.  And  as  to  all  mere  conjectural  or  contingent 
advantages  and  disadvantages,  it  may  well  be  said  they  are  too  remote  to  form 
an  element  in  estimating  land  damages.  Searle  r.  Lackawanna  Railw.,  33  Penn. 
St.  57.  But  we  cannot  admit  that  either  of  these  rules  has  any  just  application 
to  exposure  to  fire  from  the  company's  engines,  where  the  danger  is  certain  and 
inevitable.     Post,  §  82. 

"  Brand  r.  Hammersmith  &  City  Railw.  Co.,  Law  Rep.,  2  Q.  B.  223 ;  12  Jur. 
N.  S.  336.  See  also  Lafayette  Plank-Road  Co.  r.  New  Albany  Railw.  Co.,  13 
Ind.  90. 

•298 


§75. 


ACTION   FOB  CONSEQUENTIAL   DAMAGES 


293 


•SECTION  XIII. 


Action  for  Consequential  Damages. 


1.  Statute  remedy  for  lands  "  injurioudy  af- 

fected." 

2.  Without  statute  not  liabU  to  action. 

8.   Are  liable  for  negligence  in  construction,  or 

use. 
4.   Statute  remedy  exdusive. 


6.   Minerals  reserved. 

6.  Damages  for  taking  land  of  railway  for 

highway. 

7.  Compensation  for  minerals,  when  recover' 

able. 


§  75.  1.  The  liability  of  railways  for  consequential  damage  to 
the  adjoining  land-owners  must  depend  upon  the  provisions  in 
their  charters,  and  the  general  laws  of  the  state.  In  England 
railway  companies  are,  by  express  statute,^  made  liable  to  the 
owners  of  all  lands  "  injuriously  affected "  by  their  railways. 
And  under  this  statute  it  has  been  determined,  that  if  the  company 
do  any  act,  which  would  be  an  actionable  injury,  without  the  pro- 
tection of  the  special  act  of  tlie  legislature,  they  are  liable  under 
the  statute.^  So  that  there,  any  act  of  a  railway  company  amount- 
ing to  a  nuisance  in  a  private  person,  and  causing  special  damage 
to  any  particular  land-owner,  is  good  ground  of  claiming  damages 
under  this  section  of  the  statute.* 

2.  But  in  the  absence  of  all  statutory  provision  upon  the  sub- 
ject, railways  are  not  liable  for  necessary  consequential  damages 
to  land-owners,  no  poi-tion  of  whose  land  is  taken,  where  they 
construct  and  operate  their  roads  in  a  skilful  and  prudent  man- 
ner.* 

•  8  and  9  Vict.  c.  8,  §  68. 

•  Glover  V.  The  North  Staffordshire  Railw.  Co.,  16  Q.  B.  912 ;  s.  c.  6  Eng. 
L.  &  E<i.  835 ;  post,  §  82. 

»  Hatch  V.  Vt.  Central  Railw.  Co.,  25  Vt.  49.     See  §  82,  post. 

•  Monongahela  Nav.  Co,  r.  Coons,  6  Watts  &  S.  101 ;  Radcliff  r.  The  Mayor 
of  Brooklyn,  4  Comstock,  195;  Phil.  &  Trenton  Railw.  Co.,  6  Wharton,  25; 
Seneca  Road  Co.  v.  Aub.  &  Roch.  Railw.  Co.,  5  Hill  (N.  Y.),  170;  Hatch 
r.  Vt.  Central  Railw.,  25  Vt.  49;  Richardson  r.  Vt.  Central  Railw.  Co.,  25 
Vt.  465. 

There  are  many  other  cases  confirming  the  same  general  view  stated  in  the 
text.  Henry  v.  Pittsburgh  &  Allegheny  Bridge  Co.,  8  Watts  &  Serg.  85 ;  Can- 
andaigua  &  Niagara  Railw.  r.  Payne,  16  Barb.  273,  where  it  is  held,  that  in- 
jury to  a  mill  upon  another  lot  of  the  same  land-owner,  in  consequence  of  the 
construction  and  operation  of  the  railway,  is  a  matter  with  which  the  commis- 
sioners have  nothing  to  do  in  estimating  damages  for  land.     So  in  Troy  & 

•294 


294  EMINENT  DOMAIN.  CH. 

*  3.  But  if  the  railways  are  guilty  of  imprudence,  or  want  of 
skill,  eitlier  in  the  construction  or  use  of  their  road,  they  are  *  liable 

Boston  Railw  r.  Northern  Turnpike,  16  Barb.  100,  it  was  held  that  the  con- 
sideration that  the  business  of  a  turnpike,  which  claimed  damage,  would  be 
diminished  by  the  construction  of  the  railway  along  the  same  line  of  travel, 
should  be  disregarded  in  estimating  damage  to  such  turnpike.  "Every  public 
improvement,"  say  the  court,  "  must  affect  some  property  favorably,  and  some 
unfavorably,  from  the  necessity  of  the  case.  "VMien  this  effect  is  merely  conse- 
quential the  injury  is  damnum  absque  injuria.  Though  their  property  has 
undoubtedly  depreciated  by  the  construction  of  the  railway,  yet  the  turnpike 
company  enjoy  all  the  rights  and  privileges  secured  to  them  by  their  charter, 
and  no  vested  rights  have  been  violated." 

Xor  is  one  entitled  to  damage,  in  consequence  of  a  highway  being  laid  upon 
his  line,  thus  compelling  him  to  maintain  the  whole  fence.  Kennett's  Petition, 
4  Foster,  139.  In  Albany  Northern  Railw.  ».  Lansing,  16  Barb.  68,  it  is  said, 
"  The  commissioners,  in  estimating  the  damages,  should  not  allow  consequential 
and  prospective  damages." 

In  Plant  r.  Long  Island  Railw.,  10  Barb.  26,  it  is  held  not  to  be  an  illegal  use 
of  a  street  to  allow  a  railway  track  to  be  laid  upon  it,  and  that  the  temporary 
inconvenience  to  which  the  adjoining  proprietors  are  subject  while  the  work  of 
excavation  and  tunnelling  is  going  on  is  damnum  absque  injuria.  So  also  in  re- 
gard to  the  grade  of  a  street  having  been  altered,  by  a  railway,  by  consent  of  the 
common  council  of  the  city  of  Albany,  who  by  statute  were  required  to  assess 
damages  to  any  freeholder  injured  thereby,  and  who  had  done  so  in  this  case,  it 
was  held  that  no  action  could  be  maintained  against  the  railway.  Chapman  r. 
Albany  &  Sch.  Railw.,  10  Barb.  360;  Adams  v.  Saratoga  &  Wash.  Railw.,  11 
Barb.  414. 

And  in  a  case  in  Kentucky,  Wolfe  r.  Covington  &  Lexington  Railw.,  15 
B.  Monr.  404,  it  was  held,  the  municipal  authority  of  a  city  might  lawfully 
alter  the  grade  of  a  street,  for  any  public  purpose,  without  incurring  any  respon- 
sibility to  the  adjacent  landholders,  and  might  authorize  the  passage  of  a  railway 
through  the  city,  along  the  streets,  and  give  them  the  power  to  so  alter  the  grade 
of  the  streets,  as  should  be  requisite  for  that  purpose,  this  being  done  at  the  ex- 
pense of  the  company,  and  by  paying  damages  to  such  adjacent  proprietors  as 
should  be  entitled  to  them.  But  one,  who  urged  the  laying  of  the  road  in  that 
place,  on  the  ground  that  it  would  benefit  him,  and  who  was  thereby  benefited, 
cannnot  recover  damages  of  the  company,  upon  the  maxim,  "  volenti  nonjit  inju- 
ria.'''' A  railway,  when  so  authorized,  "  is  not  a  purpresture,  or  encroachment 
upon  the  public  property  or  rights." 

And  where  a  railway  company  erect  a  fence  upon  land  which  they  own  in 
fee,  for  the  purpose  of  keeping  the  snow  off  their  road,  they  are  not  liable  for 
damages  sustained  by  the  owner  of  land  upon  the  opposite  side  of  the  fence,  by 
the  accumulation  of  snow,  occasioned  by  the  fence.  Carson  v.  Western  Railw., 
Mass.  Sup.  Court,  20  Law  Rep.  850 ;  s.  c.  8  Gray,  423.  See  also  Morris  & 
Essex  Railw.  r.  Newark,  2  Stock.  Ch.  352. 

And  where  the  act  complained  of  is  the  construction  of  an  embankment,  by 
a  railway  company,  at  the  mouth  of  a  navigable  creek,  in  which  the  plaintiff 
•  295,  296 


§  75.  ACTION   FOB   CONSEQUENTIAL  DAMAGES.  295 

to  any  one  suffering  special  damage  thereby,^  as  in  needlessly 
diverting  watercourses  and  streams,  and  not  properly  restoring 
them,^  whereby  lands  are  overflowed  or  injured.^ 

4.  And  the  remedy  given  by  statute  for  taking  or  injuriously 
affecting  lands  is  exclusive  of  all  remedies,  at  common  law,  by 
action,  or  bill  in  equity,  unless  provided  otherwise  in  the  statute.® 

*  5.  But  in  a  late  English  case,"  the  House  of  Lords  held,  that 

has  a  prescriptive  right  of  storing,  landing,  and  rafting  lumber,  for  the  use  of 
his  saw-mill,  whereby  the  free  flow  of  the  water  is  obstructed,  and  the  plaintiff 
thereby  deprived  of  the  full  enjoyment  of  his  privilege,  the  injurj'  is  regarded  aa 
the  direct  and  immediate  consequence  of  the  act  of  the  company,  and  they  are 
liable  for  the  damages  thereby  sustained.  Tinsman  r.  The  Belvidere  Delaware 
Railw.  Co.,  2  Dutcher,  148. 

See  also  Rogers  r.  Kennebec  &  Portland  Railw.,  35  Me.  319;  Burton  r. 
Philadelphia  W.  &  B.  Railw.,  4  Harr.  252;  HoUister  r.  Union  Co.,  9  Conn. 
436 ;  Whittier  r.  Portland  &  Kennebec  Railw.,  38  Maine,  26. 

»  Whitcorab  v.  Vt.  Central  Railw.  Co.,  25  Vt.,  69;  Hooker  r.  N.  H.  &  N. 
Y.  Railw.  Co.;  14  Conn.  146 ;  post,  §  79.  And  there  is  the  same  liability 
although  the  lands  are  not  situate  upon  the  stream.  Brown  v.  Cayuga  &  Sus- 
quehannah  Railw.,  2  Keman,  486. 

A  party  is  liable  to  an  action  for  diverting  the  water  from  a  spring,  which  ran 
in  a  well-defined  channel  into  a  stream  supplying  a  mill,  at  the  suit  of  the  mill- 
owner,  notwithstanding  he  had  pennission  from  the  owner  of  the  land  where  the 
spring  arose.  Aliter  if  the  spring  spread  out  upon  the  land,  having  no  cliannel. 
As  the  land-owner  might  drain  his  land;  so  he  may  give  permission  to  others  to 
do  so.  Dudden  p.  The  Union,  1  Hurlstone  &  Norman,  627.  See  also  Brown 
V.  Illius,  27  Conn.  84;  Robinson  v.  New  York  &  Erie  Railw.,  27  Barb.  512; 
Waterman  o.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  610;  Henry  v.  Vermont  Cen- 
tral Railw.,  id.  638.  But  in  tliis  last  case  it  was  decided  that  the  effect  of 
erecting  a  bridge  in  a  stream  upon  tlie  course  of  the  current  below  was  so  far 
incapable  of  being  known  or  guarded  against,  that  there  was  no  duty  imposed 
upon  railway  companies  to  guard  against  an  injury  to  land-owners  below  by  a 
change  of  the  current.  See,  also,  New  Albany  &  C.  Railw.  Co.  ».  Higman,  18 
Ind.  77 ;  Same  v.  Huff,  19  id.  315;  Colcough  p.  Nashville  &  N.  W.  Railw.  Co., 
2  Head,  171. 

'  Regina  p.  Eastern  Counties  Railw.,  2  Q.  B.  347,  669 ;  8.  c.  3  Railw.  C.  466. 
But  in  this  case  the  act  expressly  provided,  that  the  verdict  and  judgment  should 
be  conclusive  and  binding,  which  most  railway  acts  do  not ;  but  it  seems  ques- 
tionable if  this  will  make  any  difference.  E.  &  W.  I.  Docks,  &c.  v.  Gattke,  S 
Mac.  &  Gor.  156 ;  s.  c.  3  Eng.  L.  &  Eq.  59 ;  post,  §  81. 

'  Caledonia  Railw.  p.  Sprot,  2  McQu.  Ho.  Lds.  499 ;  8.  c.  39  Eng.  L.  &  Eq. 
16.  But  in  Bradley  p.  New  York  &  New  H.  Railw,,  21  Conn.  294,  where  the 
defendants'  charter  gave  them  power  to  take  land,  and  made  them  liable  for  all 
damages  to  any  person  or  persons,  and  they  excavated  an  adjoining  lot  to  plain- 
tifTs,  so  as  to  weaken  the  foundations  of  his  house,  and  erected  an  embankment 
in  the  highway  opposite  his  house,  so  as  to  obscure  the  light,  and  render  it  other- 

•297 


296  EMINENT  DOMAIN.  CH.  XI. 

a  railway  company  which  had  been  condemned  to  pay  for  land, 
the  owner  reserving  the  minerals,  were  not  liable  to  the  land- 
owner, by  reason  of  his  inability  to  work  a  mine  which  he  had 
discovered  under  the  railway.  The  Lord  Chancellor  said,  "  The 
conveyance  of  the  surface  of  land  gives  to  the  grantor  an  implied 
right  of  support,  sufficient  for  the  object  contemplated,  from  the 
soil  of  the  grantor,  adjacent  as  well  as  subjacent." 

6.  And  it  has  been  held,  that  in  estimating  damages  to  a  railway 
in  consequence  of  laying  a  highway  across  land  occupied  by  them, 
it  is  not  proper  to  take  into  account  the  probable  increase  of  busi- 
ness to  the  company  in  consequence.^ 

7.  And  where  the  company  take  land,  but  decline  to  purchase 
the  minerals  after  notice  from  the  owner  of  his  intention  to  work 
them,  pursuant  to  the  English  statute,  the  company  is  not  entitled 
to  the  subjacent  or  adjacent  support  of  the  minerals.  And  where 
the  company  gave  notice,  under  the  statute,  that  the  working  of 
the  mines  was  likely  to  injure  the  railway,  the  owner  was  held 
entitled  to  recover  compensation  which  had  been  assessed  under 
the  statute.^ 

wise  unfit  for  use,  it  was  held,  that  this  did  not  constitute  a  taking  of  plaintiflTs 
land,  but  that  defendants  were  liable  to  consequential  damage  under  their  charter. 

But  in  the  early  case  of  the  Wyrley  Nav.  v.  Bradley,  7  East,  368,  it  is  con- 
sidered that,  where  the  act  of  parliament  reserved  the  right  to  dig  coal  to  the 
proprietor  of  mines,  unless  the  company,  on  notice,  elected  to  purchase  and 
make  compensation,  where  the  canal  was  damaged  by  the  near  approach  of  the 
mine,  after  such  notice,  and  no  compensation  made,  the  coal-owner  was  not 
liable,  although  it  is  there  said  to  be  otherwise  in  case  of  a  house,  undermined 
by  digging  on  the  soil  of  the  grantor.  But  this  case  seems  to  turn  upon  the 
reservation  in  the  grant. 

^  Boston  &  Maine  Railw.  v.  County  of  Middlesex,  1  Allen,  324.  The  reser- 
vation in  a  deed  of  land  to  a  railway  company  of  the  right  to  make  a  crossing 
over  the  land,  creates  an  easement  in  the  land,  but  does  not  extend  such  ease- 
ment across  the  other  lands  of  the  company.     lb. 

"  Fletcher  v.  Great  Western  Railw.,  4  H.  &  N.  242.  And  in  North  Eastern 
Railw.  Co.  V.  Elliott,  J.  &  H.  145 ;  s.  c.  6  Jur.  N.  S.  817,  it  was  held  that  the 
general  principle,  that  a  vendor  of  land  sold  for  a  particular  use  cannot  derogate 
from  his  own  grant  by  doing  any  thing  to  prevent  the  land  sold  from  being  put  to 
that  use,  applies  to  sales  to  railways  under  compulsorj-  powers.  But  it  was  here 
said  that  this  principle  will  not  compel  the  vendor  of  land  to  perpetuate  any  thing 
upon  the  portion  of  the  land  retained  by  him,  which  is  merely  accidental,  though 
existing  and  of  long  standing  at  the  date  of  the  sale.  Hence,  where  a  railway 
company  took  land  for  a  bridge  in  a  mining  district,  where  a  shaft  had  been  sunk 
many  years  before,  but  the  working  of  the  mines  abandoned  and  the  shaft  filled 
with  water  for  a  long  time  before  the  taking  of  the  land,  it  was  held  that  the  land- 


§76. 


RIGHT  TO  OCCUPY  HIGHWAY. 


297 


♦SECTION  XIV. 


Hight  to  occupy  Highway. 


1.  Decisions  conflicting. 

2.  First  held  that  oicners  of  the  fee  were  en- 

titled to  additional  dctmages. 
8.   Principle  seems  to  require  this. 
4.  Many  cases  take  a  different  view. 
6.  Legislatures  may  and  thouid  require  such 

additional  compensation. 

6.  Cwirts  of  equity  will  not  enjoin  railways 

from  occupying  streets  of  a  city. 

7.  Some  of  the  states  require  sucJi  coinpensa- 

tion. 
n.   11.  Alt  do  not.    But  the  English  courts, 
principle,  and  many  of  the  state  courts, 
do  require  it,  as  matter  of  right. 

8.  Recent  decisions  upon  the  right  to  occupy 

the  highway. 
1.   The  decisions  in  the  state  of  New  York 
require  compensation  to  the  owner  of 
the  fee. 


2.  Distinction  between  streets  of  cities  and 
highways  in  the  country. 

8.  Legislature  may  control  existing  rail- 
ways. 

4.  In  Ohio  (he  owner  of  the  fee  may  claim 
indemnity  against  additional  injury. 

6.  True  distinction,  whether  the  use  is  the 
same. 

6.  The  present   inclination  seems  to  be  to 

require    additional    com}>etisation   for 
laying  street  railway  in  highway. 

7.  Cases  in  the  opjxtsite  direction.    Judge 

Ellsworth's  opinion. 

8.  Explanation  of  the  apparent  confusion. 

9.  Where   permanent    erections    made    in 

street,  compensation  must  be  made. 
10.   Rights  of  land-owners  as  to  obstructing 

railway. 
11-28.  Recent  cases  in  New  York. 


§  76.  1.  The  decisions  are  contradictory,  in  regard  to  the  right 
of  a  railway  company  to  lay  its  track  along  a  common  highway, 
without  making  additional  compensation  to  land-owners  adjoining 
such  highway,  and  who,  in  the  country,  commonly  own  to  the  mid- 
dle of  the  highway. 

*  2.  In  some  of  the  early  cases,  upon  this  subject,  it  seems  to 
have  been  considered,  that,  under  such  circumstances,  the  land- 
owners were  entitled  to  additional  compensation,  when  the  land 
was  converted  from  a  common  carriage-way  to  a  railway.^ 

owner  was  not  precluded  from  draining  the  water  and  working  the  mine,  although 
the  effect  must  be  to  lessen  the  support  of  the  bridge  to  some  extent,  by  with- 
drawing the  hydrostatic  pressure  upon  the  roof  of  the  mine,  and  the  consequent 
support  of  the  superincumbent  strata  of  earth. 

'  Trustees  of  the  Presbj'terian  Society  in  Waterloo  v.  The  Auburn  &  Roches- 
ter Railw.  Co.,  3  Hill  (N.  Y.),  667.  The  case  of  Fletcher  r.  Auburn  &  Syra- 
cuse Railw.  Co.,  25  Wend.  462,  might  have  been  put  upon  the  same  ground, 
but  is  not.  The  ground  assumed  is,  that  the  land-owners  are  entitled  to  con- 
sequential damage,  in  consequence  of  the  new  use  to  which  the  land  is  put, 
which  amounts  to  nearly  the  same  thing.  Philadelphia  &  Trenton  Railw.,  6 
Wharton,  25;  Miller  r.  The  Auburn  &  Syracuse  Railw.  Co.,  6  Hill  (N.  Y.),  61 ; 
Mahon  V.  Utica  &  Schenectady  Railw.,  Lalor's  Supp.  to  Hill  &  Denio,  156.  And 
in  Ramsden  r.  The  Manchester  South  Junction  &  Alt.  Railw.,  1  £xch.  723,  the 

♦298,299 


298  EMINENT   DOMAIN.  CH.  XI. 

*  3.  There  is  certainly  great  reason  in  this  view,  inasmuch  as 
the  land-owner's  entire  damage  is  to  be  assessed,  at  once,  and  it 

Court  of  Exchequer  expressly  decide,  that  a  railway  company  has  no  right  even 
to  tunnel  under  a  highway,  without  making  previous  compensation  to  the  land- 
ovmer.  Seneca  Road  v.  Auburn  Ilailw.,  5  Ilill,  170;  Troy  v.  Cheshire  llailw. 
Co.  3  Foster,  83.  But  a  distinction  is  taken  between  the  property  of  adjoining 
land-owners  in  the  highway  or  street  in  cities,  and  in  the  country.  In  the 
former  it  has  been  held  that  the  fee  of  the  streets  is  under  the  sole  control  of 
the  municipal  authorities,  and  that  it  is  no  perversion  of  the  legitimate  use  of 
the  streets  to  allow  a  railway  company  to  lay  their  track  upon  them.  Plant  v. 
Long  Island  Railw.  10  Barb.  26;  Adams  v.  Saratoga  &  Washington  Railw.,  11 
Barb.  414;  Chapman  v.  Albany  &  Schenectady  Railw.,  10  Barb.  360;  Drake  v. 
Hudson  River  Railw.,  7  Barb.  608;  Applegate  v.  Lexington  &  Ohio  Railw,,  8 
Dana,  289;  Wolfe  v.  Covington  &  Lexington  Railw.,  15  B.  Monr.  404. 
I'  In  Williams  v.  New  York  Central  Railw.,  18  Barb.  222,  246,  the  court  say: 
"  A  railroad  is  only  animproved  highway,  and  the  use  of  a  street,  by  a  railway, 
is  one  of  the  modes  of  enjoying  a  public  easement."  But  see  this  case  reversed, 
post.  A  general  power  to  pass  highways  in  the  construction  of  a  canal,  or  rail- 
way, has  been  held  to  include  turnpikes  also.  Rogers  v.  Bradshaw,  20  Johns. 
735;  Wliite  River  Turnpike  Co.  v.  Vermont  Central  Railw.,  21  Vt.  590. 
But  the  grant  of  a  railway  from  one  terminus  to  another,  without  prescribing  its 
precise  course  and  direction,  does  not,  prima  facie,  confer  power  to  lay  out  the 
railway  upon  and  along  an  existing  highway.  But  it  is  competent  for  the  legis- 
lature to  grant  such  authority,  either  by  express  words,  or  necessary  implication ; 
and  such  implication  may  result,  either  from  the  language  of  the  act,  or  from  its 
being  shown,  from  an  application  of  the  act  to  the  subject-matter,  that  the  rail- 
way cannot,  by  reasonable  intendment,  be  laid  in  any  other  line.  Springfield  v. 
Connecticut  River  Railw.,  4  Cush.  63 ;  s.  c.  1  Am.  Railw.  C.  572.  But  in  gen- 
eral, the  adjoining  owner  of  land  to  a  highway  is  entitled  to  additional  compen- 
sation, where  it  is  put  to  a  different  and  more  dangerous  use.  And  towns  have 
an  interest  in  highways  and  bridges,  which  will  enable  them  to  maintain  an 
action  upon  the  case  for  their  obstruction  or  destruction,  and  the  conversion  of 
the  materials.  Troy».  Cheshire  Railw.,  3  Foster,  83.  But  the  town  is  not 
liable  to  pay  damages  assessed,  by  the  selectmen,  in  laying  out  a  highway,  at 
the  request  of  a  railway  company,  made  necessary  to  supply  the  place  of  one 
taken  by  the  company  for  their  track.     Ellis  r.  Swanzey,  6  Foster,  266. 

In  general,  it  may  be  stated  as  the  settled  doctrine  of  most  of  the  states,  that 
the  owner  of  land,  bounded  upon  a  highway,  owns  to  the  centre  of  the  way. 
Buck  V.  Squiers,  22  Vt.  484,  495.  The  general  rule  as  to  monuments,  re- 
ferred to  in  deeds  of  land,  undoubtedly  is,  that  the  centre  of  such  monuments  is 
intended,  whether  it  be  stake,  stone,  tree,  rock,  or  a  highway,  or  stream.  It  is 
undoubtedly  more  a  rule  of  policy  than  of  intention,  and  as  such,  to  answer  its 
end,  should  be  applied  in  every  case,  unless  a  clearly  defined  intention  to  the 
contrary  be  made  to  appear.  3  Kent,  Comm.  433;  Chatham  ».  Brainerd,  11 
Conn.  60;  Champlin  v.  Pendleton,  13  Conn.  23;  Livingston  «.- Mayor  of 
New  York,  8  Wend.  85,  106  ;  Starr  p.  Child,  20  Wend.  149 ;  s.  c.  4  Hill,  369 ; 
Canal  Comm.  v.  People,  6  Wend.  423 ;  8.  c.  13  Wend.  355 ;  Johnson  v.  Ander- 
•800 


§  76.  RIGHT  TO   OCCUPY   HIGHWAt.  299 

*  could  never  be  done  iinderstandingly,  unless  the  use  to  which  it 
were  to  be  put  were  known  to  the  assessors.     And  it  is  obvious, 

son,  18  Me.  76 ;  Bucknam  r,  Bucknam,  3  Fairfield,  463 ;  Leavitt  v.  Towle,  8 
N.  Ilatup.  96;  Dovaston  f.  Payne,  2  Smith's  Leading  Cases,  90,  and  notes  by 
"Wallace  &  Hare ;  Nicholson  r.  New  York  &  New  Ilaven  Railw.,  22  Conn. 
74. 

But  the  owner  of  the  fee  of  land,  over  which  a  highway  passes,  cannot  main- 
tain a  bill  in  equity,  to  enforce  an  order  of  commissioners,  as  to  the  manner  of 
constructing  a  railway,  where  it  crosses  the  highway,  but  the  same  should  be 
brought  by  the  principal  executive  officers  of  the  town  or  city.  Brainard  r. 
Conn.  River  Railw.,  7  Cush.  506.  The  court  say :  "  It  is  only  where  the  owner 
suffers  some  special  damage,  differing  in  kind  from  that  which  is  common  to 
others,  that  a  personal  remedy  accrues  to  him,  and  certainly  no  rule  of  law  rests 
on  a  wiser  or  more  sound  policy.  Were  it  otherwise,  suits  might  be  multiplied 
to  an  indefinite  extent,  so  as  to  create  a  public  evil,  in  many  cases,  much  greater 
than  that  which  was  sought  to  be  redressed."  Stetson  r.  Faxon,  19  Pick.  147; 
Proprietors  of  Quincy  Canal  c.  Newcomb,  7  Met.  276 ;  Smith  v.  Boston,  7  Cush. 
254;  Hughes  p.  IVovidence  &  Worcester  Railw.  Co.,  2  Rhode  Island,  493. 

In  Williams  v.  Natural  Bridge  Plank  Road  Co.,  21  Missouri,  580,  it  is  held, 
that  the  grant  of  the  right  of  locating  a  plank-road  upon  a  county  road,  does 
not  exclude  the  idea  that  the  owner  of  the  soil  over  which  the  road  passes 
should  have  compensation  for  any  injury  he  may  sustain  by  converting  a  county 
road  into  a  plank-road.  This  case  is  put,  by  the  court,  upon  the  ground,  that 
the  plank-road  is  an  additional  burden  upon  the  soil,  and  that  for  this  the  land- 
owner is  as  much  entitled  to  compensation  as  if  his  land  had  originally  been 
taken  for  the  purpose  of  the  plank-road,  and  that  to  deny  all  redress  in  such 
case  is  a  virtual  violation  of  that  article  of  the  constitution  giving  compensation 
to  the  owner  of  property  taken  for  public  use. 

This  is  undoubtedly  the  rule  of  the  English  law,  and  of  reason  and  justice, 
and  we  should  rejoice  to  see  it  prevail  more  extensively  in  this  country.  The 
American  courts  seem  to  have  been  sometimes  led  astray  upon  this  subject  by 
the  fallacy,  that  a  railway  is  merely  an  improved  highway,  which  for  many  pur- 
poses it  is,  but  not  for  all,  any  more  than  a  canal.  See  also  Railroad,  ex  parte, 
2  Rich.  434. 

And  the  New  York  statute,  giving  railways  the  right  to  pass  upon,  or  over 
turnpikes,  plank-roads,  rivers,  &c,,  by  restoring  such  ways,  rivers,  &c.,  so  as  not 
unnecessarily  to  have  impaired  their  usefulness,  was  construed  not  to  preclude 
a  plank-road  from  recovering  of  the  railway  all  damages  sustained  by  them  in 
a  common  action  for  damages,  under  the  code,  the  company  having  entered 
upon  the  plank-road  without  causing  damages  to  be  assessed  under  the  statute. 
Ellicottville  Plank-road  v.  Bufialo,  &c.  Railw.,  20  Barb.  644.  As  the  New  York 
Court  of  Appeals  have  changed  the  rule  upon  this  subject,  in  that  state,  since 
the  body  of  this  work  was  through  the  press,  in  the  former  edition,  and  only  a 
note  of  the  case  was  inserted  at  the  close  of  that  edition,  we  deem  it  proper 
here  to  present  the  opinion  at  length.  Williams  r.  New  York  Central  Railw., 
16  N.  Y.,  97.  The  point  decided  is,  that  the  dedication  of  land  to  the  use  of 
the  public  as  a  highway  does  not  authorize  it  being  taken  by  a  railway  company 

•301 


300  EMINENT   DOMAIN.  CH.  XI. 

*  that  it  would  ordinarily  be  attended  with  far  more  damage  to  the 
remaining  land  to  have  a  railway  than  a  common  highway  laid 
across  it. 

for  their  track,  without  compensation  to  the  owner  of  the  fee,  although  done  by 
the  consent  of  the  legislature,  and  of  the  municipal  authorities. 

Selden,  J.  —  '*  This  is  a  suit  in  equity,  the  object  of  which  is  to  obtain  a  per- 
petual injunction,  restraining  the  defendants  from  continuing  to  use  and  occupy 
with  their  railway  a  portion  of  a  certain  highway  or  street  in  the  village  of 
Syracuse,  known  as  Washington  Street,  and  to  recover  damages  for  past  occu- 
pation. 

"Washington  Street  was  gratuitously  dedicated  to  the  use  of  the  public  by 
the  plaintiff  and  others,  through  whose  land  it  was  laid,  and  the  Utica  and 
Syracuse  Railway  Company,  to  the  rights  and  liabilities  of  which  the  defendants 
have  succeeded,  constructed  their  railway  upon  it  without  making  any  compen- 
sation to  the  plaintiff,  and  without  his  consent.  At  the  time  the  track  was  laid, 
the  plaintiff  was  the  owner  of  a  large  number  of  lots  fronting  upon  the  street, 
a  portion  of  which  he  has  since  sold,  with  a  reservation  of  his  claim  against  the 
railway  company  for  damages,  and  a  portion  of  which  he  still  owns.  The  dam- 
ages which  have  accrued  both  upon  the  sold  and  unsold  portions  of  the  premi- 
ses are  claimed  in  this  suit. 

"  The  defendants,  in  justification  of  their  occupation  of  the  street,  show  that 
the  charter  of  the  Utica  and  Syracuse  Railway,  Session  Laws  of  1836,  p.  819, 
§  11,  declares  that  their  road  might  '  intersect '  and  be  built  upon  any  highway, 
and  that  this  right  is  confirmed  by  the  general  railway  act  of  1850. 

"They  also  show  the  express  consent  of  the  municipal  authority  of  the  city  of 
Syracuse  to  such  occupation.  The  principal  question,  therefore,  and  the  only 
one  which  I  deem  it  necessary  to  consider,  is,  whether  the  state  and  municipal 
authorities  combined  could  confer  upon  the  railway  company  the  right  to  con- 
struct their  road  upon  this  street  without  obtaining  the  consent  of,  or  making 
compensation  to,  the  plaintiff. 

"  If  the  railway  encroaches  in  any  degree  upon  the  plaintiff's  proprietary 
rights,  then  it  is  clear  that  the  constitutional  inhibition,  which  forbids  the  taking 
of  private  property  for  public  use  "  without  just  compensation,"  applies  to  the 
case. 

"It  is  conceded  that,  by  the  dedication,  the  public  acquired  no  more  than 
the  ordinary  easement,  or  a  right  to  use  the  premises  as  a  highway,  and  that 
the  plaintiff  continues  the  owner  in  fee  in  respect  to  the  unsold  lots  to  the 
centre  of  the  street,  subject  only  to  this  easement.  But  it  is  contended  that 
the  taking  and  use  of  the  street  by  the  railway  company  does  not  encroach 
upon  the  reserved  rights  of  the  plaintiff,  because  the  use  of  a  street  for  the 
purposes  of  a  railway  is  only  "  one  of  the  modes  of  enjoying  the  public  ease- 
ment." .  .  . 

[After  examining  various  cases,  which,  the  learned  judge  said,  "  may  be  con- 
sidered as  settling  that  a  railway  in  a  populous  town  is  not  a  nui.^ance  per  se, 
and  that  when  the  railway  company  has  acquired  the  title  to  the  land  upon 
which  its  road  is  located,  such  company  being  in  the  exercise  of  a  lawful  right, 
•302 


§  76.  RIGHT  TO   OCCUPY  HIGHWAY.  301 

*  4.  If  the  rule  of  estimating  damages,  according  to  the  money 
value  of  the  land  taken,  were  adopted,  there  would  be  more 

is  not  liable,  unless  guilty  of  some  misconduct  or  negligence,  for  any  consequen- 
tial injuries  which  may  result  to  others  from  the  operation  and  use  of  its  road ; 
but  they  decide  nothing  whatever  in  regard  to  the  question  to  be  considered  in 
this  case,"  —  he  proceeded:]  "There  is  also  another  class  of  cases  in  which, 
although  the  injur)-  complained  of  is  to  the  corporeal  rights  of  the  plaintiff,  yet 
being  merely  consequential,  and  no  direct  trespass  or  unauthorized  intrusion 
upon  the  plaintiffs  property  being  alleged,  the  question  under  consideration 
here  could  not  arise.  Such  are  the  cases  of  Fletcher  r.  The  Auburn  and  Syra- 
cuse Railway  Co.,  25  Wend.  464,  and  Chapman  r.  Albany  and  Schenectady 
Railway  Co.,  10  Barb.  360."  In  these  and  the  like  cases,  the  title  of  the  com- 
pany to  the  ground  on  which  its  road  is  built,  is  not  disputed.  It  is  unnecessary, 
therefore,  to  notice  them  further  here. 

**  We  come,  then,  to  the  consideration  of  the  cases  which  do  flbar,  with  more 
or  less  weight,  upon  the  question  to  be  decided,  and  upon  which,  so  far  as  au- 
thority is  concerned,  its  decision  must  mainly  depend.  The  first  among  these 
cases,  in  the  order  of  time  as  well  as  of  importance,  is  that  of  The  Presbyterian 
Society  of  Waterloo  v.  The  Auburn  and  Rochester  Railway  Co.,  3  Hill,  567. 
The  declaration  was  in  trespass  for  entering  upon  the  plaintiffs'  premises,  dig- 
ging up  the  soil,  and  constructing  their  railway  track  upon  it.  The  defence  was, 
that  the  lucus  in  quo  was  a  public  highway,  and  that  the  charter  of  the  company 
expressly  authorized  it  to  construct  its  road  upon  and  across  any  highway.  The 
point,  therefore,  was  presented  in  the  most  direct  manner  possible,  and  the 
defence  most  emphatically  overruled.  The  language  of  Chief  Justice  Nelson  is 
most  pertinent  and  forcible.  lie  says :  '  But  the  plaintiffs  were  not  divested  of 
the  fee  of  the  land  by  the  laying  out  of  a  highway ;  nor  did  the  public  thus 
acquire  any  greater  interest  therein  than  a  right  of  way,  with  the  powers  and 
privileges  incident  to  that  right,  such  as  digging  the  soil  and  using  the  timber 
and  other  materials  found  within  the  limits  of  the  road  in  a  reasonable  manner, 
for  the  purpose  of  making  and  repairing  the  same,  subject  to  this  easement,  and 
this  only.   The  rights  and  interests  of  the  owners  of  the  fee  remained  unimpaired. 

" '  It  is  quite  clear,  therefore,  even  if  the  true  construction  of  the  eleventh 
section  accords  with  the  view  taken  by  the  counsel  for  the  defendants,  that  the 
legislature  had  no  power  to  authorize  the  company  to  enter  upon  and  appro- 
priate the  land  in  question  for  purposes  other  than  those  to  which  it  had  been 
originally  dedicated  in  pursuance  of  the  highway  act,  without  first  providing  a 
just  compensation  therefor.' 

"  It  was  argued  in  that  case,  as  in  this,  that  using  the  road  for  a  railway  was 
only  a  different  mode  of  exercising  the  right  which  had  been  acfjuired  by  the 
people ;  that  the  use  was  virtually  the  same,  that  of  accommodating  the  travelling 
public.  But  the  argument  met  with  no  favor  from  the  court.  Judge  AeUon 
says :  *  It  was  said  on  the  argument,  that  the  highway  is  only  used  by  the  de- 
fendant for  the  purposes  originally  designed, — the  accommodation  of  the  public, 
and  for  this  compensation  has  already  been  made.  This  argument  might  have 
been  used  with  about  the  same  force  in  the  case  of  Sir  John  Lade  v.  Shepherd,  2 
Strange,  1004.' 

•803 


302  EMINENT   DOMAIN.  CH.  XI. 

*  reason  in  saying  the  public  would  thereby  acquire  the  right  to 
use  it  for  any  purposes  of  a  road,  which  any  future  improvement 

"  He  adds,  on  this  subject :  •  The  claim  set  ap  (by  the  defendant)  is  an  ease- 
ment, not  a  right  of  passage  to  the  public,  but  to  the  company,  who  have  the 
exclusive  privilege  of  using  the  track  of  the  road  in  their  own  peculiar  manner. 
The  public  may  travel  with  them  over  the  track,  if  they  choose  to  ride  in  their 
cars.'  , 

"  This  case,  which  was  decided  by  our  late  Supreme  Court,  upon  full  consid- 
eration, and  in-  so  emphatic  a  manner,  ought  to  be  conclusive,  unless  it  appears 
upon  principle  to  be  erroneous.  .  .  . 

"  It  will  not  be  seriously  and  cannot  be  successfully  contended,  either  that 
the  dedication  of  land  for  a  highway  gives  to  the  public  an  unlimited  use, 
or  that  the  legislature  have  .the  power  to  encroach  upon  the  reserved  rights 
of  the  owners,  by  materially  enlarging  or  changing  the  nature  of  the  public  ease- 
ment. * 

"  The  only  plausible  ground  which  can  be  taken  is  that  which  was  assumed  in 
the  case  of  The  Presbyterian  Society  in  Waterloo  v.  The  Auburn  and  Rochester 
Railroad  Co.,  supra,  and  Avhich  has  also  been  assumed  here,  namely,  that  to  con- 
vert a  highway  into  a  railway  track  is  no  material  change  in  or  enlargement  of 
that  to  which  it  was  originally  dedicated ;  that  the  construction  of  a  railway  along 
a  highway  is  simply  one  of  the  modes  of  accompli sliing  the  object  of  the  original 
dedication,  viz.,  that  of  creating  a  thoroughfare  and  passage-way  for  the  public; 
in  short,  that  the  railway  is  a  species  of  highway,  and  that  the  two  uses  are  sub- 
stantially identical. 

"But  is  this  assumption  just?  Are  the  two  uses  the  same?  If  the  only 
difference  consisted  in  the  introduction  of  a  new  motive  power,  it  would  not  be 
material.  But  is  there  no  distinction  between  the  common  rights  of  ever}-  man 
to  use  upon  the  road  a  conveyance  of  his  own  at  will,  and  the  right  of  a  corpora- 
tion to  use  its  conveyances  to  the  exclusion  of  all  others,  —  between  the  right  of 
a  man  to  travel  in  his  own  carriage  without  pay,  and  the  right  to  travel  in  the 
car  of  a  railway  company  on  paying  their  price  ? 

' '  It  may  be  said  that  the  use  of  the  road  as  a  common  highway  is  not  sub- 
verted ;  that  a  man  may  still  drive  his  own  carriage  upon  it.  Without  pausing 
to  notice  the  fallacy  of  this  argument,  and  the  impracticability  of  the  enjoyment 
of  such  a  right  when  railway  trains  are  passing  and  repassing  everj'  half  hour, 
let  us  look  at  the  subject  in  another  point  of  view.  The  right  of  the  public  in 
a  highway  is  an  easement,  and  one  that  is  vested  in  the  whole  public.  Is  not 
the  right  of  a  railway  company,  if  it  has  a  right  to  construct  its  track  upon  the 
road,  also  an  easement  ?  This  cannot  be  denied ;  nor  that  the  latter  easement  is 
enjoyed,  not  by  the  public  at  large,  but  by  a  corporation ;  because  it  will  not  be 
pretended  that  every  man  would  have  a  right  to  go  and  lay  down  his  timbers  and 
his  iron  rails,  and  make  a  railway  upon  a  highway.  These,  then,  are  two  ease- 
ments; one  vested  in  the  public,  the  other  in  the  railway  company.  These 
easements  are  property,  and  that  of  the  railway  company  is  valuable.  How  was 
it  acquired  ?     It  has  cost  the  company  nothing. 

"  The  theory  must  be  that  it  is  carved  out  and  is  a  part  of  the  public  easement, 
and  is,  therefore,  the  gift  of  the  public.  This  would  do  if  it  was  given  solely  at 
♦804 


§  76.  RIGHT  TO   OCCUPY   HIGHWAY.  303 

•  might  suggest.  And  this  is  the  view  which  seems  very  exten- 
sively to  prevail  in  this  country.     It  was  long  since  settled  that 

the  expense  of  the  public.  But  it  is  manifest  that  it  is  at  the  joint  expense  of 
the  public  and  the  owner  of  the  fee.  Ought  not  the  latter,  then,  to  have  been 
cousulted  ? 

"But  it  is  unnecessarj-  to  refine  upon  this  case.  Any  one  can  see,  that  to 
convert  a  common  highway,  running  over  a  man's  land,  into  a  railway,  is  to  im- 
pose an  additional  burden  upon  the  land,  and  greatly  to  impair  its  value.  As 
no  compensation  has,  in  this  case,  been  made  to  the  owner,  his  consent  must  in 
some  way  be  shown. 

"  The  argument  is,  that  as  he  has  consented  to  the  laying  out  of  a  highway 
upon  his  land,  ergo,  he  has  consented  to  the  building  of  a  railway  upon  it,  al- 
though one  of  these  benefits  his  land,  renders  access  to  it  easy,  an<l  enhances  its 
price,  while  tlie  other  makes  access  to  it  both  difficult  and  dangerous,  and  n?n- 
ders  it  comparatively  valueless.  Were  the  transaction  between  two  individuals, 
every  one  would  see  at  once  the  injustice  of  the  conclusion  attempted  to  be 
drawn.  It  is  the  public  interest,  supposed  to  be  involved,  which  begets  the 
difficulty ;  and  it  is  just  for  this  reason  that  the  constitution  interferes  for  the 
protection  of  individual  rights,  and  provides  that  private  property  shall  not  be 
taken  for  public  use  without  compensation ;  a  provision  no  less  neccssarj-  than 
just,  and  one  which  it  is  the  duty  of  courts  to  see  honestly  and  fairly  en- 
forced. 

"  The  case  stated  by  the  learned  judge  who  delivered  a  dissenting  opinion  in 
the  Supreme  Court,  is  a  striking  illustration  of  the  injustice  that  would  frequently 
be  done  under  the  rule  contended  for  by  the  defendants. 

"A  street  was  laid  out  through  a  man's  land,  and  he  was  assessed  several 
hundred  dollars  for  benefits,  in  a<ldition  to  the  land  taken,  and  before  the  street 
was  opened  it  was  taken  by  a  railway  company,  and  converted  into  the  track  of 
their  road.  The  owner  lost  his  land,  had  to  pay  several  hundred  dollars,  and 
had  the  annoyance  of  the  railway  besides,  while  the  railway  company  got  the 
road  for  nothing. 

'*  The  case  of  Inhabitants  of  Springfield  r.  Connecticut  River  Railroad  Co.,  4 
Cush.  63,  shows  what  the  Supreme  Court  of  Massachusetts  thought  of  the  argu- 
ment that  the  uses  are  the  same.  It  was  insisted  there,  on  the  part  of  the  defend- 
ants, that  the  power  conferred  upon  them  by  the  legislature  to  build  their  road 
between  certain  termini,  gave  tliem,  by  necessary  implication,  the  right  to  build 
their  track  upon  any  intervening  highway.  But  Chief  Justice  S/iaw,  in  his 
reply  to  tiiis  argument,  says :  *  The  two  uses  are  almost,  if  not  wholly,  incon- 
sistent with  each  other,  so  that  taking  the  highway  for  a  railway  will  nearly 
supersede  the  former  one  to  which  it  had  been  legally  appropriated.  The 
whole  course  of  legislation  on  the  subject  of  railways  is  opposed  to  such  a  con- 
struction.' 

*'  I  concur  with  the  learned  chief  justice,  and  have  no  hesitation  in  coming  to 
the  conclusion,  that  the  dedication  of  land  to  the  use  of  the  public  as  a  highway 
is  not  a  dedication  of  it  to  the  use  of  a  railway  company ;  that  the  two  uses  are 
essentially  different,  and  that,  consequently,  a  railway  cannot  be  built  upon  a 
highway  without  compensation  .to  the  owners  of  the  fee.     The  legislative  pro- 

•306 


304  EMINENT  DOMAIN.  CH.  XI. 

*the  land-owner  was  not  entitled  to  any  additional  damage,  by 
reason  of  any  alteration  in  the  construction  of  the  highway .^  Or 
in  applying  it  to  the  use  of  a  turnpike  road  where  toll  was  paid, 
this  being  but  a  different  mode  of  supporting  the  highway,  of 
which  the  land-owner  had  no  just  cause  of  complaint,  since  it  did 
not  materially  alter  the  use  of  the  land.^  And  the  same  rule  has 
now  been  pretty  extensively  extended  to  improvements  in  erecting 
railways  along  the  streets  and  highways.*  These  questions  depend 
much  upon  the  terms  of  the  charter  of  the  railway  company. 

visions  on  the  subject  were  probably  intended,  as  was  intimated  in  The  Presby- 
terian Society  of  Waterloo  v.  The  Auburn  and  Rochester  Railroad  Co.,  supra, 
to  confer  the  right  so  far  only  as  the  public  easement  is  concerned,  leaving  ihe 
companies  to  deal  with  the  private  rights  of  individuals  in  the  ordinary  mode. 
If,  however,  more  was  intended,  the  provisions  are  clearly  in  conflict  with  the 
constitution,  and  cannot  be  sustained. 

"  It  follows  that  the  defendants,  in  constructing  their  road  upon  Washington 
Street,  without  the  consent  of  the  plaintiff,  and  without  any  appraisal  of  his 
damages,  or  compensation  to  him  in  any  Ibrm,  were  guilty  of  an  unwarrantable 
intrusion  and  trespass  upon  his  property,  and  that  he  is  entitled  to  relief. 

"  Although  he  had  a  remedy  at  law  for  the  trespass,  yet  as  the  trespass  was  of 
a  continuous  nature,  he  had  a  right  to  come  into  a  court  of  equity,  and  to  invoke 
its  restraining  power  to  prevent  a  multiplicit}'  of  suits,  and  can,  of  course,  recover 
his  damages  as  incidental  to  this  equitable  relief.  There  may  be  doubt  as  to  his 
right  to  recover  in  this  suit  the  damages  upon  the  lots  which  have  been  sold, 
because,  as  to  those  lots,  there  was  no  occasion  to  ask  any  equitable  relief,  and 
to  permit  the  damages  to  be  assessed  in  this  suit  in  effect  deprives  the  defendants 
of  the  right  to  have  them  assessed  by  a  jurj'.  But  as  this  question  has  not  been 
raised,  it  is  unnecessary'  to  consider  it." 

It  has  been  held  that  the  lajdng  out  and  operating  a  horse  railway  in  the 
streets  of  a  city  is  not  an  additional  servitude  upon  the  soil,  for  which  the  owner 
is  entitled  to  compensation.  Brooklj-n  Central  &  Ja.  Railw.  v.  Brooklyn  City 
Railw.,  33  Barb.  420.  And  if  one  company  lay  their  track  across  the  track  of 
another,  they  are  entitled  to  no  compensation.     lb, 

*  Zimmerman  c.  The  Union  Canal  Co.,  1  Watts  &  Serg.  346 ;  Mayor  r.  Ran- 
dolph, 4  Watts  &  Serg.  514 ;  Gov.  &  Co.  of  Plate  Manufacturers  v.  J^feredith, 
4  T.  R.  790 ;  Sutton  v.  Clark,  6  Taunton,  29 ;  Boulton  r.  Crowther,  2  B.  & 
C.  703 ;  The  liing  c.  Pagham,  8  B.  &  C.  355 ;  Henry  v.  The  Alleghany  &  Pitts- 
burg Bridge  Co.,  8  Watts  &  Serg.  86;  Shrunk  v.  Schuylkill  iSav.  Co.,  14  S. 
&  R.  71 ;  Commonwealth  v.  Fisher,  1  Penn.  467 ;  Hatch  v.  Vermont  Central 
Railw.,  25  Vt.  49 ;  Taylor  r.  City  of  St.  Louis,  14  Misso.  20 ;  Richardson 
t>.  Vermont  Central  Railw.,  25  Vt.  465;  Callender  r.  Marsh,  1  Pick.  418; 
Rounds  p.  Mmnford,  2  Rhode  Island,  154 ;  O'Connor  v.  Pittsburgh,  18  Penn. 
St.  187 ;  Plum  v.  Morris  Canal  &  Bank  Co.  and  the  City  of  Newark,  2  Stock- 
ton's Ch.  256. 

'  Wright  r.  Coster,  3  Butcher,  76. 

*  Plant  c.  Long  Island  Railw.  Co.,  10  Barb.  26.    But  see  Mifflin  v.  Harris- 

•306 


§  76.  RIGHT  TO   OCCUPY  HIGHWAY.  305 

5.  And  as  it  is  confessedly  competent  for  the  legislature  to 
require  railways,  in  laying  their  track  along  the  highways,  to 
make  compensation  to  the  adjoining  land-owners,  for  any  increased 
detriment,  or  to  be  liable  for  all  consequential  damage,^  and  as  it 
is  assuredly  just  and  equitable  to  do  so,  it  seems  desirable  it  should 
be  done.  And  in  those  states  and  countries  *  where  such  enter- 
prises have  become  so  far  matured  as  to  have  assumed  the  form  of 
a  settled  system,  it  more  commonly  is  done.  And  where  it  is  not, 
it  may  be  regarded  as  tlie  result  of  oversight  in  the  legislature. 
It  was  held  that  a  railway  is  liable  to  pay  damages  for  crossing  a 
turnpike  company's  road,  notwithstanding  the  legislature  gave  the 
right.* 

6.  Injunctions  in  equity  have  been  denied,  when  applied  for,  to 
restrain  railways  from  occupying  the  streets  of  cities  and  towns 
with  their  track,'  by  consent  of  the  municipal  authority. 

burg,  Portsmouth,  M.  &  L.  Railw.  Co.,  4  Harris  (Penn.),  182.  In  this  case 
the  act  required  payment  of  damage  to  all  who  were  injured  by  converting  a 
turnpike  into  a  railway,  and  it  was  held  a  receipt  in  full  to  the  turnpike  company 
did  not  bar  the  claim  of  an  adjoining  land-owner  for  additional  damages.  But 
the  levelling  of  a  street,  preparatory  to  laying  the  structure  of  a  railway,  is  not 
an  obstruction.  McLaughlin  v.  Charlotte  and  S.  C.  Kailw.,  5  Rich.  583 ;  Ben- 
edict p.  Coit,  3  Barb.  459. 

*  Bradley  v.  N.  Y.  «&  N.  H.  Railw.  Co.,  21  Conn.  294. 

•  Seneca  Railw.  Co.  v.  Aub.  &  Roch.  Railw.  Co.,  5  Hill,  170.  And  the 
amount  of  damage  is  immaterial.  The  maxim,  de  minimis,  does  not  apply  to 
cases  of  plain  violation  of  right     Id.  Cowen,  J. 

^  Hamilton  p.  New  York  &  Harlem  Railw.,  9  Paige,  171 ;  Ilentz  p.  Long 
Is.  Railw.,  13  Barb.  646;  Chapman  p.  Albany  &  Sch.  Railw.,  10  Barb.  360; 
Lexington  &  Ohio  Railw.  p.  Applegate,  8  Dana,  289 ;  Drake  p.  Hudson  River 
Railw.,  7  Barb.  608;  Wetmore  p.  Story,  22  Barb.  414;  Milhau  p.  Sharp,  16 
Barb.  193.  But  where  the  railway  is  constructed  without  the  legal  permission 
of  the  municipal  authorities  or  the  legislature,  along  the  streets  of  a  populous 
city,  it  fcecomes  a  nuisance,  and  courts  of  equity  will  prohibit  its  continuance,  at 
the  suit  of  individuals  who  are  tax-payers  and  property  owners  on  the  streets, 
through  which  the  rails  are  laid.  In  a  late  case  in  New  Jersey,  Morris  &  Essex 
Railw.  p.  City  of  Newark,  2  Stockton's  Ch.  352,  the  right  of  a  railway  company 
to  occupy  the  streets  of  a  city  seems  to  have  been  examined  with  considerable 
care  by  the  chancellor,  but  the  cases  upon  the  subject  are  not  examined  very 
extensively,  and  reliance  is  there  placed  upon  the  case  of  Williams  p.  The  New 
York  Central  Railw.,  which  has  since  been  reversed  in  the  Court  of  Appeals, 
ante,  n.  1. 

There  is  one  distinction  here  adverted  to  that  is  not  named  in  other  cases,  so 
far  as  we  have  noticed,  that  so  long  as  the  highway  or  street  continues  to  be  used 
as  such,  the  concurrent  use  of  it  by  a  railway  company  for  their  track,  by  con- 

20  •807 


306  EMINENT  DOMAIN.  CH.  XI. 

*  7.  But  in  a  recent  and  well-considered  case,^  it  was  held,  that 
where  a  railway  company,  in  carrying  their  road  tlirough  the 
streets  of  the  city  of  New  Haven,  found  it  necessary  to  carry  one 
of  the  streets  over  the  railway,  upon  a  high  bridge,  with  large 
embankments  at  each  end,  the  plaintiff  owning  the  land  upon  both 
sides  of  the  street,  and  no  compensation  being  assessed  to  him,  he 

sent  of  the  legislature  and  the  municipal  authorities,  does  not  entitle  the  owner 
of  the  fee  to  additional  compensation.  But  if  it  is  appropriated  exclusively  to 
the  use  of  the  railway,  the  owner  is  then,  by  constitutional  provision,  entitled  to 
compensation,  the  discontinuance  of  the  highway  causing  a  reverter  of  the  fee  to 
the  owner.  This  qualification  takes  away  the  most  offensive  feature  of  what  is 
claimed,  in  some  of  the  cases,  the  right,  in  the  legislature  and  the  municipal 
authorities,  to  transmute  a  common  highway  or  street  into  a  public  railway,  as 
one  of  those  improvements  in  the  mode  of  intercommunication  which  the  progress 
of  events  had  brought  about,  and  which  must  be  regarded  as  fairly  within  the 
contemplation  of  the  parties  at  the  time  of  the  original  taking. 

But,  in  the  present  case,  there  being  no  necessity  for  the  use  of  the  street  in 
question  by  the  railway,  but  merely  a  convenience,  and  no  expre^  consent  of 
the  municipal  authorities  for  such  use,  it  was  held  that  no  right  to  such  use  could 
be  implied,  from  the  grant  of  their  charter,  between  certain  tennini,  which  might 
be  obtained  by  a  route  less  injurious  to  the  public,  and  that  the  consent  of  the 
municipal  authorities  was  not  to  be  inferred  from  their  not  interfering  until  the 
track  had  been  laid  and  used  for  several  years  and  large  sums  of  money  thus 
invested,  and  important  interests  accrued,  and  the  injunction  restraining  the  au- 
thorities from  removing  the  track  was  dissolved.  The  extent  to  which  a  railway 
company  must  obstruct  the  highway,  at  an  intersection  of  the  two,  to  create  an 
actionable  impediment  to  the  public  travel,  is  extensively  considered  in  the  case 
of  Great  Western  Railw.  Co.  v.  Decatur,  33  HI.  381.  It  was  here  decided, 
that  twelve  feet  of  the  highway  remaining  unobstructed,  so  that  a  steady  team 
might  have  passed  in  safety,  is  not  enough  to  exonerate  the  railway  company 
from  a  charge  of  obstructing  the  passage  of  the  highway. 

*  Nicholson  v.  New  York  &  New  Haven  Railw.,  22  Conn.  74.  If  there 
is  any  departure  from  general  principles,  in  this  case,  it  is  in  holding  the  railway 
company  justified  in  making  alterations  in  highways,  which  cause  no  appreciable 
injurj'  to  the  land-holders,  and  this  certainly  commends  itself  to  our  sense  of 
reason  and  justice.  It-  may  be  somewhat  questionable,  perhaps,  whether  the 
charge  of  the  judge,  who  tried  the  case  at  the  circuit,  was  not  based  upon  the 
technical  rules  applicable  to  the  case,  namely,  that  the  company  were,  at  all 
events,  liable  for  nominal  damages,  and  for  all  actual  damages  in  addition.  But 
where  a  railway  company,  by  consent  of  the  mayor  and  aldermen  of  a  city,  under 
the  Revised  Statutes,  raise  a  street  to  enable  them  to  carry  their  road  imder  it, 
they  become  primarily  liable  to  the  adjoining  land-owners  for  any  damage  to 
their  estates  thereby.  And  it  will  not  affect  the  liability  of  the  company,  that 
the  city  took  of  them  a  bond  of  indemnity,  and  appointed  a  superintendent  to 
take  care  of  the  public  interests  in  the  execution  of  the  work.  Gardiner  v.  Bos- 
ton &  Worcester  Railw.,  9  Cush.  1. 

♦308 


§  76.  BIGHT  TO   OCCUPY  HIGHWAY.  307 

might  recover  of  the  company  in  an  action  of  trespass,  for  any 
appreciable  incidental  damages,  occasioned  by  thus  constructing 
their  road,  and  the  consequent  alteration  of  the  highway  or  street. 
And  as  the  company,  in  thus  constructing  their  road,  acted  under 
the  authority  of  the  legislature,  they  were,  prima  facie,  not  to  be 
regarded  as  trespassers,  but  that,  where  they  caused  any  appre- 
ciable damage  to  the  land-owners  along  the  line  of  the  road,  they 
were  liable  in  this  form  of  action.  The  court  in  this  case,  Hinr 
man  J  J.,  assumed  the  distinct  *  ground,  that  the  railway,  by  laying 
their  track  upon  the  plaintifTs  land,  which  was  before  subject  to 
the  servitude  of  the  highway,  or  street,  would  become  liable  "  for 
such  entry"  upon  the  land.  "In  such  case,"  says  the  learned 
judge,  "  the  subjecting  the  plaintiff's  property  to  an  additional 
servitude,  is  an  uifringement  of  his  right  to  it,  and  is,  therefore, 
an  injury  and  damage  to  him.  It  would  be  a  taking  of  the  prop- 
erty of  the  plaintiff,  without  first  making  compensation."  And 
the  same  court,  in  a  later  case,^  hold  that  the  location  of  a  railway 
upon  a  public  highway  is  the  imposition  of  a  new  servitude  upon 
the  land,  and  the  owner  of  the  fee  is  entitled  to  compensation  for 
the  damage  caused  thereby.  And  this  includes  all  incidental 
damage  to  land  adjoining,  and  which  belongs  to  the  same  pro- 
prietor. 

In  a  case  in  Pennsylvania,^**  it  is  held  tliat  the  legislature 
may  authorize  the  construction  of  a  railway  on  a  street,  or  public 
highway,  and  the  inconvenience  thereby  incurred  by  the  citizens 
must  be  borne  for  the  sake  of  the  public  good.  But  where  this  is 
claimed  by  construction  and  inference,  all  doubts  are  to  be  solved 
against  the  company. 

And  where,  by  the  act  of  incorporation  of  a  municipality,  it  was 
provided  that  the  "  streets,  lanes,  and  alleys  thereof"  should  for 
ever  be  and  remain  public  highways,  it  was  held  that  the  munici- 
pal authorities  could  not  authorize  the  construction  of  a  railway 
thereon, ^'^ 

But  where  the  state  conveys  to  a  city  the  title  of  a  common, 
reserved  in  the  grant  of  the  township  for  a  "  common  pasture," 
subject  to  the  easement  of  the  lot  holders,  of  common  of  pasturage, 

»  Imlay  v.  The  Union  Branch  Railw.  Co.,  26  Conn.  249. 
'•  Commonwealth  r.  Erie  &  Northeast  Railw.,  27  Penn.  St.  839.     See  also 
Alleghany  v.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355. 

•309 


308  EMINENT  DOMAIN.  CH.  XI. 

it  was  held  that  the  city  might  lawfully  grant  a  portion  of  the  same 
10  a  railway  company,  for  the  purpose  of  constructing  their  road.^^ 

'  "  Alleghany  r.  Ohio  &  Pennsylvania  Railw.,  26  Penn.  St.  355.  But  the  grant 
of  fifty  feet,  through  such  a  common,  in  a  densely  populated  city,  will  only  con- 
vey the  right  to  the  railway  to  erect  their  road  thereon,  and  to  receive  and  dis- 
charge passengers  and  freight,  and  will  not  give  the  right  to  erect  depots, 
car-houses,  or  other  structures,  for  the  convenience  or  business  of  the  road ;  or 
to  permit  their  cars  and  locomotives  to  remain  on  their  track  longer  than  is 
necessarj'  to  receive  and  discharge  freight  and  passengers.     lb. 

And  it  might  have  been  regarded  as  the  settled  doctrine  of  the  New  York 
courts,  imtil  the  case  of  Williamson  v.  N.  Y.  Central  R.,  ante,  n.  1,  that  the 
owner  of  the  fee  of  land  dedicated  to  the  use  of  a  highway  or  street,  and  which 
the  legislature  devote  to  the  use  of  a  railway,  had  no  claim  upon  the  company 
for  compensation,  by  reason  of  the  additional  servitude  thereby  imposed  upon 
the  land.  Corey  v.  Buffalo,  Coming,  &  New  York  Railw.,  23  Barb.  482  ;  Rad- 
cliff  r.  Mayor  of  Brooklyn,  4  Comst.  195 ;  Gould  v.  Hudson  River  Railw.,  2  Seld. 
522.     But  this  is  now  otherwise  in  New  York. 

And  so  late  as  January-,  1857,  the  subject  is  elaborately  examined  by  Vice- 
Chancellor  Kindersley,  in  Thompson  v.  West  Somerset  Railw.,  29  Law  Times, 
7,  in  relation  to  the  cestuis  que  trust  of  a  pier,  over  which  the  act  of  parliament, 
in  express  terms,  authorized  the  company  to  construct  their  road,  but  which  they 
had  done  without  proceeding  under  the  statutes,  to  appraise  compensation,  and 
the  court  held  them  trespassers,  and  an  injunction  was  granted  until  the  company 
made  compensation. 

And  in  a  case  in  Indiana,  the  subject  is  considered,  and  although  the  author- 
ities are  not  much  reviewed,  the  conclusions  of  the  court  conform  so  closely  to  the 
broadest  views  of  reason  and  justice,  that  we  shall  insert  an  extended  note  of  the 
points  decided. 

A  city  ordinance  authorized  the  constraction  of  a  railway,  on  either  of  two 
streets,  through  the  corporate  limits,  tmder  suitable  restrictions  as  to  grade.  It 
was  considered  that  the  ordinance  did  not  authorize  the  company  to  substantially 
alter  the  grade  of  the  street.     It  was  further : 

Held,  that  besides  the  right  of  way,  which  the  public  have  in  a  street,  there  is 
a  private  right,  which  passes  to  a  purchaser  of  a  lot  upon  the  street,  as  appurte- 
nant to  it,  which  he  holds  by  an  implied  covenant,  that  the  street  in  front  of  his 
lot  shall  for  ever  be  kept  open,  for  his  enjo}-ment,  and  for  any  obstruction  thereof, 
to  the  owner's  injury,  he  may  maintain  an  action. 

The  right  which  the  owner  of  a  lot  has  to  the  enjoyment  of  an  adjoining  street 
is  part  of  his  property,  and  can  only  be  taken  for  public  use,  on  just  compensa- 
tion being  made,  piu^uant  to  the  constitution.  Tate  r.  Ohio  &  Miss.  Railw.,  7 
Porter  (Ind.),  479. 

And  in  HajTies  r.  Thomas,  id.  38,  where  the  cases  are  more  fuUy  examined, 
the  same  general  propositions  are  maintained.  It  is  there  said,  the  right  of  the 
owner  of  a  town  lot,  abutting  upon  a  street,  to  use  the  street,  is  as  much  prop- 
erty as  the  lot  itself,  and  the  legislature  has  as  little  power  to  take  away  one  as 
the  other. 

These  general  propositions  are  repeated,  and  somewhat  varied,  in  the  notes 


§  76.  RIGHT  TO   OCCUPY   HIGHWAY.  309 

*  8.  Since  the  second  edition  of  this  work,  the  decisions  have 
been  considerably  numerous  in  regard  to  the  right  of  railways 
*  to  occupy  the  streets  and  highways,  without  making  additional 
compensation  to  the  owners  of  the  fee  of  the  lands  across  which 
the  same  are  laid.  The  principles  involved  are  much  the  same 
as  have  been  already  stated  ;  but  it  will  be  important  to  the  pro- 
fession to  know  them  in  detail. 

1.  In  a  somewhat  recent  case^*  it  was  decided,  that  the  occu- 
pation of  the  highway  by  the  track  of  a  railway  company,  is  the 
imposition  of  an  additional  servitude,  and  is  the  taking  of  the  prop- 
erty of  the  owner  of  the  fee  in  the  lands  over  which  the  same  is 
laid,  within  those  constitutional  prohibitions  requiring  compen- 
sation where  private  property  is  taken  for  public  use ;  and  that 
consequently  the  company  can  acquire  no  right  to  such  use,  under 
legislative  and  municipal  license,  without  compensation,  and  that 
there  is  no  difference  in  this  respect  between  railways  operated  by 
steam  and  by  other  motive  power.  But  in  another  case  it  was  held, 
that  any  legislative  act  empowering  a  railway  company  to  occupy 
certain  streets  and  avenues  in  the  city  of  New  York,  should  not  be 
construed  as  not  intended  to  give  such  permission  without  com- 
pensation.*^ In  the  main,  this  case  assumes  the  opposite  ground 
from  that  declared  by  Craig  v.  Rochester  City  and  Br.  Railway 
Co.^  The  question  came  up  for  revision  in  the  Court  of  Appeals, 
in  the  case  of  the  People  v.  Kerr,**  *  where  the  court  maintained 

of  this  case.  And  although  we  think,  upon  principle,  the  right  as  against  a  rail- 
way company  should  be  placed  upon  the  basis  of  its  being  an  additional  and  more 
oppressive  burden  and  servitude  upon  the  land,  which  entitles  the  land-owner  to 
additional  compensation,  there  can  be,  in  our  judgment,  no  manner  of  question 
of  the  general  soundness  of  the  above  decisions.  And  the  latter  case,  being  that 
of  the  voluntary  dedication  of  property,  by  the  owner,  for  the  purposes  of  a 
street  and  highway,  is  verj*  well  calculated  to  illustrate  the  hardship  and  injustice 
of  wresting  such  use  to  the  purposes  of  a  railway,  so  much  more  burdensome  and 
injurious.  So  that  the  general  current  of  the  American  law  upon  this  subject 
may  now  be  regarded  as  the  same  with  the  English  rule  already  stated. 

Protzman  v.  Ind.  &  Cin.  Railway.,  9  Ind.  467;  Evansville  &  C.  Railw.  v. 
Duke,  9  Ind.  433.  See  also  Marquis  of  Salisbury  r.  Great  Northern  Railw., 
5  C.  B.  (N.  S.)  174,  8.  c.  5  Jur.  N.  S.  70. 

•*  Craig  V.  Rochester  City  &  Br.  Railw.  Co.,  89  Barb,  494. 

"  People  ».  Kerr,  37  Barb.  367. 

"  27  N.  Y.  188.  This  case  must  be  regarded  as  settling  the  law  in  this 
state,  notwithstanding  some  conflict  in  the  decisions  of  their  different  supreme 
courts.  The  rule  is  thus  laid  down  by  Emott,  J.,  in  the  case  last  cited.  "  It 
must  be  regarded  as  settled,  in  the  jurisprudence  of  this  state,  that  the  appro- 

•310,311,312 


310  EMINENT  DOMAIN.  CH.  XI. 

the  proposition  that  the  construction  of  a  city  railway  upon  the 
surface  of  the  streets,  and  without  change  of  grade,  is  an  appro- 
priation of  the  land  to  some  extent  to  public  use,  but  the  court 
held  that  the  original  owner  of  the  fee  of  the  streets  in  the 
city  of  New  York  had  no  such  remaining  interest  as  to  justify 
any  demand  for  compensation  on  his  part  for  reasons  before 
stated.  1^ 

2.  The  same  distinction,  as  to  the  right  of  the  owner  of  the  fee 
to  demand  compensation,  between  the  use  of  the  streets  of  towns 
and  cities  for  the  track  of  railways,  and  of  highways  in  the  country, 
is  observed  in  many  of  the  other  states.  Thus  in  two  cases  in 
Iowa  this  distinction  is  maintained.!^ 

3.  The  question  of  the  locations  of  railway  across  or  along  the 
streets  and  highways  of  cities  and  towns,  as  well  as  in  the  rural 
districts,  is  extensively  discussed  in  a  late  case  in  Maine,  which 
came  more  than  once  before  the  courts.^''^  But  most  of  the  propo- 
sitions here  maintained  are  more  or  less  affected  by  statutory  pro- 
visions. It  is  here  declared  (which  indeed  is  found  in  many  other 
cases,  and  is  sufficiently  obvious  in  itself)  that  statutes  regulating 
the  operation  of  railways  are  to  be  considered  as  affecting  only  the 
general  police  of  the  state,  and  as  applying  equally  to  existing  and 
future  railways  ;  but  even  matters  of  police  affecting  the  construc- 
tion of  railways  cannot  reasonably  be  construed  as  having  a 
retroactive  operation,  so  as  to  require  a  railway  company  to  undo 
and  do  over  again  the  work  of  construction. 

4.  The  cases  ^^  decided  in  Ohio,  in  regard  to  the  use  of  highways 

priation  of  property  to  the  construction  or  use  of  a  railway  for  the  transportation 
of  property,  is  an  application  of  such  property  to  the  use  of  the  public.  The 
doctrine  applies  to  all  railways,  whether  traversing  the  state  or  the  streets  of  a 
city,  and  of  course  the  motive  power  used  does  not  affect  the  question.  So,  also, 
the  uniform  course  of  decisions  and  legal  proceedings  since  Bloodgood  v.  Mohawk 
&  Hudson  Railw.  (18  Wend.  1),  and  founded  upon  the  principles  there  asserted, 
is  conclusive  that  it  does  not  affect  the  question  of  public  use  in  such  cases,  that 
the  property  applied  to  it  is  to  be  appropriated  by  a  corporation  or  by  individ- 
uals, and  not  directly  by  the  state  or  the  people,  or  that  the  road  is  not  of  a 
character  to  be  actually  used  by  any  and  every  citizen  with  his  own  vehicle. 

"  Ante,  §  70,  pi.  13. 

"  Milbum  V.  City  of  Cedar  Rapids,  «&e.,  12  Iowa,  2-16 ;  Haight  v.  The  City 
of  Keokuk,  &c.,  4  id.  199. 

"  Veazie  v.  Mayo,  45  Me.  560;  s.  c.  49,  id.  156. 

"*  Crawford  v.  Delawne,  7  Ohio  N.  S.  459 ;  Cincinnati  &  Spring  Grove  Avenue 
Railw.  Co.  V.  Cumminsville,  14  Ohio  N.  S.  523. 


§  76.  RIGHT  TO   OCCUPY  HIGHWAY.  311 

and  streets  for  tlie  purpose  of  street  railways,  do  not  appear  to  be 
altogether  decisive  of  the  principle  involved.  It  seems  to  be  there 
r^arded,  that  so  far  as  a  street  or  highway  can  be  appropriated 
for  such  use,  without  appreciable  damage  to  the  *  owner  of  the  land 
adjoining,  that  he  is  not  entitled  to  any  additional  compensation, 
but  that  if,  from  change  of  grade  or  any  other  cause,  there  is  any 
essential  damage  inflicted  upon  the  abutters,  by  obstructing  access 
to  lands  or  buildings,  or  in  any  other  respect,  more  than  would 
have  resulted  from  the  use  in  the  ordinary  mode  for  a  highway, 
the  owner  of  the  fee  will  be  entitled  to  demand  additional  compen- 
sation. 

5.  But  it  is  obvious  that  the  difficulty,  in  point  of  principle,  lies 
somewhat  deeper.  For  although  the  rule  there  laid  down,  in  point 
of  equity,  may  be  entirely  just  and  reasonable,  it  must  always 
prove  embarrassing  in  practice,  and  compel  an  appraisement  in 
each  particular  case,  in  order  to  insure  security.  The  true  prin- 
ciple undoubtedly  is,  that  if  the  use  is  substantially  the  same  as 
that  of  an  ordinary  highway,  no  additional  compensation  can  be 
required ;  but  if  the  use  is  new  and  distinct  from  that  of  an 
ordinary  highway,  the  owner  of  the  fee  is  entitled  to  additional 
compensation  in  every  case,  without  reference  to  special  damages ; 
so  that  the  question  turns  upon  the  point  whether  the  use  of  a 
street  or  highway  for  the  support  of  a  railway  track  is  using  it 
for  a  highway  only.  As  such  use  of  the  street  for  street  railways 
is  of  necessity  solely  under  municipal  control,  and  is  a  use  to 
which  the  municipal  authorities  might  themselves  devote  the  street 
by  constructing  the  tracks  at  their  own  expense,  allowing  all 
travellers  to  use  them  with  every  species  of  carriage,  it  seemed 
natural  to  conclude  that  it  could  not  be  regarded  as  an  additional 
servitude  ;  but  the  current  of  authority  seems  to  be  setting  in  the 
opposite  direction. 

6.  The  present  inclination  seems  to  be  to  make  no  distinction 
between  the  use  of  streets  by  steam  and  street  railways,  and  to 
require  compensation  in  both  cases  alike. ^* 

7.  There  are  some  few  cases  in  different  states  which  still  ad- 

'•  Ford  r.  Chicago  and  North  Western  Railw.  Co.,  14  Wise.  609;  City  of 
Janesville  v.  Milw.  &  Miss.  liailw.  Co.,  7  id.  484;  Pomeroy  r.  Chi.  «&  Milw. 
Railw.  Co.,  16  id.  640 ;  Warren  p.  State,  5  Dutcher,  393 ;  Veazie  r.  Penobscot 
Railw.,  49  Me.  119.  The  same  principle  is  maintained  in  Brown  r.  Duplessia, 
14  Louis.  Ann.  842.  But  by  statute  in  this  state  the  cities  may  sell  the  use  of 
the  streets  for  city  passenger  railway  purposes. 


312  EMINENT   DOMAIN.  CH.  XI. 

here  to  the  doctrine  that  the  laying  of  a  railway  track  for  the  pas- 
sage of  street  railways,  at  the  ordinary  grade  of  the  highv/ay,  *  is 
not  an  appropriation  of  any  estate  in  the  land  to  public  use  beyond 
that  already  appropriated  by  devoting  tlie  land  to  the  use  of  a 
highway  or  street.^  And  there  is  an  elaborate  opinion  of  Mr. 
Justice  Ellsworth^  of  the  Connecticut  Superior  Court,^  where 
the  same  views  are  maintained,  and,  as  it, seems  to  us,  with 
more  plausibility  than  any  case  we  have  found  in  the  opposite 
direction. 

8.  The  explanation  of  the  singular  vacillation  of  the  courts  upon 
the  subject  of  railways  being  located  on  the  highways,  and  whether 
the  owner  of  the  fee  was  thereby  entitled  to  additional  compensa- 
tion, seems  to  arise  in  the  following  manner.  At  the  first  it  was 
so  common  to  designate  steam  railways  as  only  an  improved  high- 
way, that  the  courts,  almost  universally  in  this  country,  held  the 
owner  of  the  fee  entitled  to  no  additional  compensation  by  reason 
of  such  railways  being  laid  upon  the  highway,  either  across  or 
along  their  route.  But  this  view,  upon  more  careful  consideration, 
being  found  untenable,  the  retrocession  of  the  courts  from  their 
former  false  assumption  naturally  gave  them  an  unnatural  impulse 
in  the  opposite  direction,  by  which  the  conclusion  was  arrived  at, 
that  all  railways  must  equally  be  an  additional  burden  upon 
the  fee.  Whether  the  proper  distinction  between  street  railways 
and  those  occupying  a  distinct  route  and  transacting  mainly  a  dis- 
tinct business  will  ever  be  clearly  defined  is  perhaps  questionable. 

9.  It  seems  very  certain  that  the  grant  to  a  railway  company  of 
the  right  to  pass  along  the  streets  of  a  city  or  town  can  confer  no 
right  to  erect  stations  and  other  permanent  structures  in  tlie 
streets,  and  thereby  render  them  unfit  for  use  as  streets.^  In  such 
cases  the  adjoining  land-owners  will  be  entitled  to  redress  by  way  of 
damages,  whether  they  own  to  the  middle  line  of  the  street  or  only 
to  the  margin.^ 

10.  But  the  owner  of  an  unimproved  building  lot  upon  a  street 
cannot  be  regarded  as  suffering  any  such  injury  from  the  location 
of  a  railway  along  the  public  street  adjoining  as  will  entitle  him 
to  an  injunction.^    And  the  fact  that  the  defendant  *  owned  the 

»  New  Albany  Railw.  Co.  v.  O'Daily,  12  Ind.  551. 
"  Elliott  V.  Fairhaven  &  Westville  Railw.  Co.,  32  Conn,  579. 
»•  Lackland  v.  North  Missouri  Railw.  Co.,  31  Mo.  180. 
"  Zabriskie  v.  Jersey  City  &  Bergen  Railw.  Co.,  2  Beasley,  314. 
•  814,  315 


§  76.  RIGHT   TO  OCCUPY   HIGHWAY.  313 

land  across  which  a  railway  track  is  laid,  and  had  never  released 
the  right  of  way  to  the  railway,  is  no  ground  of  defence  for  placing 
obstructions  upon  the  track.'**  Nor  will  the  breach  of  contract  by 
which  the  company  secured  the  right  of  way  give  any  color  of 
justification  to  the  land-owner  for  placing  any  such  obstructions  on 
the  track.'^ 

11.  Some  recent  cases  affecting  the  location  of  street  railways 
in  the  city  of  New  York  may  be  of  interest  to  the  profession,  and 
we  have  therefore  inserted  in  the  note  below  ^  the  leading  points 
decided. 

•*  State  V.  Hessenkamp,  17  Iowa,  25. 

"  Sixth  Av.  Railw.  Co.  v.  Kerr.  46  Barb.  138,  where  the  following  points 
are  ruled :  — 

Where  a  railroad  is  laid  in  a  public  street,  under  a  permissive  grant  to  the 
company  to  use  a  portion  of  the  street  for  that  purpose,  the  company  does  not 
acquire  the  same  unqualified  title  and  right  of  disposition  to  the  land  occupied 
which  individuals  have  in  their  lands. 

The  only  exclusive  power  conferred  by  such  grants  is  that  of  using  railway 
carriages  in  the  same  manner  as  the  grant  of  a  stage  line  confers,  for  the  time 
being,  the  grant  of  a  monopoly  of  using  such  stages  for  the  transportation  of 
passengers  for  hire  on  that  route.     lb. 

After  a  railway  company  has  obtained  permission  from  the  common  council 
of  New  York  to  lay  a  railway  through  certain  streets  of  the  city,  and  such  grant 
is  subsequently  confirmed  by  an  act  of  the  legislature,  the  legislature  has  the 
power  to  grant  similar  privileges  to  another  company,  and  to  authorize  the  latter 
to  run  upon,  intersect,  or  use  any  portion  of  the  tracks  already  laid,  on  condi- 
tion of  making  compensation  or  payment  to  the  first  grantees,  if  the  parties  do 
not  agree.     lb. 

Such  a  grant  is  not  a  violation  of  any  right  of  property.  The  grantees  must 
be  considered  as  holding  the  grants  for  the  public  use,  in  the  public  street,  which 
is  open  to  all  the  public. 

The  right  to  grant  a  crossing  of  the  road  necessarily  involves  a  right  to  pass 
over  a  larger  portion  of  such  road,  when  the  legislature  so  directs.     lb. 

A  railway  corporation,  by  acquiring  the  right  to  construct  its  road  across  a 
highway,  and  obtaining  title  to  the  land  for  its  road-bed,  does  not  destroy  or 
impair  the  public  easement.  The  perfect  and  unqualified  right  of  every  citizen 
to  pass  over  the  road  at  that  point  remains  the  same  as  before.     lb. 

The  common  council  of  the  city  of  New  York  has  no  power  to  authorize  an 
extension  of  a  city  railway,  unless  possibly  where  such  extension  is  really  neces- 
sary to  the  enjoyment  of  a  previous  valid  grant.  People  v.  Third  Av.  Kailw., 
45  Barbour,  63. 

If  it  be  claimed  that  such  extension  is  a  necessary  incident  to  the  principal 
subject  of  the  grant,  that  is  a  question  of  fact,  and  the  burden  of  proving  it  rests 
on  the  railroad  company.     lb. 

*By  the  act  incorporating  the  New  York  &  Harlem  Railw.,  passed  April 

*  316 


314  ,  EMINENT   DOMAIN.  CH.  XI. 

25,  1832,  the  company  was  empowered  to  construct  a  single  or  double  rail- 
way from  any  point  on  the  north  bounds  of  23d  Street,  in  the  ci^^^y  of  New 
York,  to  any  point  on  the  Harlem  River  between  the  east  bounds  of  the  Third 
Avenue  and  the  west  bounds  of  the  Eighth  Avenue,  with  a  branch  to  the  Hud- 
son River,  between  124th  Street  and  the  north  bounds  of  129th  Street.  Held, 
1.  That  the  practical  location  of  the  railway  within  the  prescribed  limits  would 
exhaust  the  powers  conferred,  and  prevent  a  subsequent  change  of  location, 
except  by  consent  of  the  legislature.  2.  That  the  location  of  the  tracks  (if  there 
were  two)  would  have  to  be  substantially  upon  the  same  route.  That  the  permis- 
sion to  build  a  double  track  should  be  construed  to  mean  two  tracks  essentially 
upon  the  same  location,  for  the  purpose  of  enabling  cars  to  run  in  opposite  direc- 
tions, and  not  two  essentially  different  routes  through  different  streets  and  ave- 
nues, such  as  would  be  occupied  by  parallel  railways ;  especially  as  the  right  of 
granting  to  other  persons  or  corporations  authority  to  construct  parallel  railways 
on  streets  or  avenues  not  occupied  by  the  New  York  and  Harlem  Railw.,  was 
expressly  reserved  to  the  legislature  by  the  sixteenth  section  of  the  same  act. 
People  V.  N.  Y.  &  Harlem  Railw.,  45  Barbour,  73. 

By  an  amendatory  act  of  the  6th  of  April,  1832,  the  company  was  ♦'  author- 
ized and  empowered,  with  the  permission  of  the  mayor,  &c.,  of  New  York,  to 
extend  their  railway  along  the  Fourth  Avenue  to  14th  Street,  and  through  such 
other  streets  as  the  mayor,  &c.,  might  from  time  to  time  permit,  subject  to  such 
prudential  rules  "  as  were  prescribed  by  the  act,  and  as  the  said  mayor,  &c.,  in 
common  council  convened,  might  prescribe.  Held,  that  the  precise  route  of  the 
extension  was  not  intended  to  be  defined  by  the  act,  but  this  was  designedly 
left  to  the  sound  discretion  of  the  common  council ;  and  the  road  was  to  be  ex- 
tended through  such  other  streets  as  the  mayor,  &c.,  might  from  time  to  time 
pennit.     lb. 

That  this  was  a  continuous  power,  left  to  be  exercised  from  time  to  time  as  the 
wants  of  the  community  should  require.  It  was  not,  therefore,  a  power  which 
was  spent  by  a  single  grant  or  permission,  but  might  be  repeatedly  exercised, 
according  to  the  exigency  of  the  case.     lb. 

Held,  also,  that  the  extension  authorized  by  the  act  of  April  6,  1832,  was  a 
longitudinal  and  not  a  lateral  one ;  and  it  was  not  meant  that  it  should  pursue 
the  same  precise  direction  with  that  portion  of  the  road  to  which  it  was  attached, 
and  not  in  any  degree  diverging  from  such  a  course,  but  that  it  should  have  the 
same  general  direction  as  a  southern,  southeastern  or  southwestern  direction, 
and  not  a  direction  to  opposite  or  widely  divergent  points  of  the  compass.     lb. 

Held,  further,  that  a  reasonable  interpretation  of  the  act  required  that  the 
extension  should  be  made  from  the  termination  of  the  road  already  constructed, 
so  as  to  be  a  legitimate  continuation  and  prolongation  thereof.  That  it  was  to 
go  further,  not  to  return  back.  It  was  to  be  continued,  not  to  branch  off.  It 
was  to  be  a  single  route,  not  several  routes.  It  was  to  be  an  extension,  and  not 
a  branch.     lb. 

Accordingly,  the  common  council  of  New  York  having  professedly,  in  pursu- 
ance of  the  authority  given  by  the  act  of  April,  1832,  passed  an  ordinance  on 
the  "■  21st  of  April,  1863,  granting  permission  to  the  New  York  &  Harlem  Railw. 
to  extend  its  railway,  and  construct  a  double  track  from  their  present  Fourth 
*317 


§76. 


RIGHT  TO   OCCUPY   HIGHWAY. 


315 


Avenue  track,  between  17th  and  18th  Streets,  through  Broadway  to  the  foot  of 
Whitehall  Street,  with  an  additional  track  around  Bowling-Green  and  State 
Street,  and  another  additional  single  track  around  Union  Sijuare ;  with  further 
permission  to  construct  an  additional  single  track  to  the  Fulton  Ferrj-,  through 
John  Street,  &c.,  returning  through  Fulton  Street;  and  to  extend  its  railway 
and  construct  a  double  track  in  Fourth  Avenue,  through  2.Sd  Street  to  Madison 
Avenue,  and  thence  through  Madison  Avenue  as  far  as  it  is  or  hereafter  may  be 
opened;  with  further  permission  to  connect  therewith  by  a  single  or  double 
track  from  Fourth  Avenue  to  Madison  Avenue,  through  24th  Street.  IltUl,  that 
the  permission  attempted  to  be  granted  by  the  ordinance  was  not  warranted  by 
the  terms,  intent,  or  fair  interpretation  of  the  act  of  6th  April,  1882.     lb. 

Held,  also,  that  the  permission  granted  by  the  common  council  to  the  railway 
company  was  not  maintainable  as  a  lawful  exercise  of  power  granted  to  the 
common  council  under  the  ancient  Dongan  and  Montgomery  charters,  indepen- 
dent of  any  statutor}-  grant  or  authority.     lb. 

And  in  a  recent  case  in  Pennsylvania  Commonwealth  r.  Central  Passenger 
Railw.,  55  Penn.  St.  506,  where  a  proviso  in  the  defendants'  act  of  incorporation 
prohibited  the  company  from  using  any  railway,  turnpike,  or  artificial  road,  with- 
out first  obtaining  the  consent  of  the  owners,  it  was  held  it  could  not  use  the 
paved  streets  of  the  city  of  Philadelphia  without  first  obtaining  the  consent  of  the 
municipal  authority. 

NATURE  AND   EXTENT   OF   STREET  RAILWAY  FRANCHISES. 

We  have  thought  it  proper  to  here  insert  the  substance  of  our  views  on  some 
of  the  questions  just  discussed,  as  contained  in  a  report  to  the  legislature  of 
Massachusetts,  upon  the  rights,  duties,  and  interests  of  street  railways  in  the 
Commonwealth,  in  January,  1865. 

THE   PROPEBTT   RIGHTS  OF  THE   COMPAKT   CONSIDERED. 


11 


12 


1.  The  inferttt  demand*  reatomMe  protection, 

2.  The  UguUiture  have  power  to  impose  a  per- 

manent burden  vpon  streets. 

8.  But  this  is  not  to  be  assumed  as  matter  of 
eonstmctioH, 

4.  Deasions  not  wnform.  Generally  held  that 
street  raiboay  /ranckise  exists  in  the  ease- 
ment for  the  highoa^  Aiudogy  of  steam 
roads. 

6.  Street  nuheays  do  not  inereau  the  servitude 
of  the  highway. 

6.  Mutt  always  be  regarded,  and  treated,  as  a 

portion  of  the  hightcay. 

7.  The  estate  or  franchise  of  street  raUwags, 

exclusive,  as  to  passenger  traffic. 

1.  We  shall  now  state,  as  briefly  as  practicable,  and  make  it  intelligible,  the 
true  nature  of  the  property  of  the  companies  in  their  locations,  as  we  understand 
it,  and  what  further  legislation,  if  any,  is  demanded  on  their  behalf  During 
the  hearing  it  was  a  good  deal  pressed  upon  our  consideration,  that  some  further 
provision  of  law  was  demanded,  in  order  to  render  so  large  an  amount  of  capital, 


8,  9.  This  point  further  illustrated. 

10.  How  far  the  legislature  may  affect  Ike  ex- 
clusireness  of  this  franchise. 
Where  compensation  is  required,  no  abridg- 
ment of  right  imjAied. 
The  franchise  and  property  must  remain 
subject  to  legislature  and  municijMil  controL 

18.  Some  states  allow  additional  Innd-damages 
for  change  of  grade  of  the  street, 

14.  This  not  demandable,  unless  the  change  is 
required  for  something  in  addilitm  to  high- 
way, or  unless  git  en  by  fecial  statute. 

16-10.  Summary  of  the  argument  under  this 
head. 


316  EMINENT   DOMAIN.  CH.,XI. 

as  that  already  invested  in  street  railways,  as  secure  as  possible,  its  present  inse- 
curity tending  very  unjustly  and  unnecessarily  to  depreciate  its  value  In  the 
market.  There  is  great  reason  and  justice  in  this  claim,  provided  it  can  be  done 
without  too  great  infringement  of  other  interests,  or  too  great  departure  from 
the  established  policy  of  the  law,  in  regard  to  such  other  interests. 

2.  We  make  no  question  of  the  right  of  the  supreme  legislative  power  of  the 
*  Commonwealth  to  impose  a  permanent  burden  upon  the  streets  and  highways, 
throughout  its  limits,  in  favor  of  street  railway  companies. 

8.  But  such  a  step  is  so  much  at  variance  with  the  general  policy  of  states  in 
this  country,  and  everywhere,  so  far  as  we  know,  that  it  cannot  be  assumed,  as 
matter  of  construction,  upon  any  general  and  doubtful  provisions  of  legislation. 
And  we  have  felt  it  to  be  our  duty  to  examine  carefully  into  the  legislation  and 
decisions  of  the  different  states,  in  order  to  determine,  if  we  could,  the  nature 
and  extent  of  the  franchise,  or  estate,  of  the  street  railway  companies,  conse- 
quent upon  the  grant  of  their  charters  and  the  location  of  their  tracks. 

4.  In  looking  into  these  decisions,  we  find  no  uniformity,  and  no  such  view  of 
the  principles  involved,  as  wiU  be  likely  to  result  in  the  attainment  of  uniformity 
of  decision,  at  least  ibr  many  years  to  come.  In  a  large  number  of  the  cases 
which  have  come  before  the  courts,  in  the  different  states,  it  seems  to  have  been 
assumed,  as  matter  of  course,  that  street  railways,  laid  in  the  public  streets  and 
highways,  become  a  part  of  the  public  easement  in  such  streets  and  highways, 
and  that  the  owners  of  the  fee  of  the  land  covered  by  such  railways,  or  the  adjoin- 
ing proprietors,  have  no  claim  for  additional  damages.  And  the  same  rule  has 
been  extended  to  steam  railways,  laid  In  the  public  streets  and  highways.  In  a 
majority  of  the  states  where  the  question  has  been  decided.  This  we  cannot 
regard  as  a  sound  principle,  as  to  steam  railways.  For  although  they  may  be 
regarded.  In  a  certain  sense,  as  a  public  highway,  for  the  passing  and  repassing 
of  all  persons  who  choose  to  avail  themselves  of  the  privilege,  in  that  particular 
mode  of  travel.  It  is  very  obvious  that  they  are,  in  no  sense,  a  common  highway 
for  public  travel,  in  the  ordinary  sense,  or  the  ordinary  mode.  They  do  not 
admit  of  such  communication  along  their  line.  They  are  *  confined  to  a  single 
mode  of  communication,  which  Is  exclusively  under  the  control  of  a  private 
company,  and  they  impose  a  servitude  upon  the  land,  for  the  exclusive  benefit 
of  this  private  company,  as  distinct,  and  as  clearly  an  additional  burden,  from 
the  easement  for  the  ordinary  highway,  as  a  canal,  or  any  other  public  work 
which  It  is  possible  to  conceive.  Hence,  in  the  state  of  New  York  the  Court 
of  Appeals  have  reversed  their  former  decisions,  and  now  follow  the  English 
courts,  and  hold  the  owner  of  the  fee,  covered  by  a  highway,  entitled  to  addi- 
tional compensation,  where  a  steam  railway  Is  laid  either  across  or  along  its 
courser  Some  other  states  have  of  late  taken  the  same  view,  and  we  feel  con- 
fident that  so  reasonable  a  doctrine  must  ultimately  prevail  throughout  the 
country.  It  may  be  proper  here  to  state,  what  will  occur  to  any  one,  that  while 
the  track  of  the  street  railway  is  not,  or  should  not  be,  an  impediment  to  the  use 
of  the  highway  for  ordinary  vehicles,  the  rail  of  the  steam  road  is  required  to  be 
so  constructed  as  to  prove  a  verj'  serious  impediment  to  ordinary  travel ;  and 
there  are  other  important  grounds  of  distinction  between  the  steam  railways,  as 
tft  present  operated,  and  the  street  railways. 
*318 


§  76.  RIGHT  TO   OCCUPY  HIGHWAY.  317 

6.  In  regard  to  street  railways,  therefore,  the  question  is  very  difTerent,  as  to 
creating  an  additional  ser>'itude  upon  the  land.  They  are  confined  to  the  public 
highways ;  as  a  general  thing,  no  alteration  in  grade  is  required.  They  are  not 
allowed  to  use  such  motive  power  as  will  seriously  annoy  other  travellers,  or  the 
adjoining  proprietors.  The  statutes,  whether  general  or  special,  under  *  which 
these  companies  have  gone  into  operation,  have  been  studiously  drawn,  with 
a  special  view  to  make  this  new  mode  of  transportation  inherent  merely  in  the 
public  easement  of  the  highway.  This  has  been  done,  probably,  with  the  double 
purpose  of  escaping  the  pa^-ment  of  additional  land  damages,  and  at  the  same 
time  to  quiet  the  public  mind  as  to  any  apprehension  that  the  companies  might 
ultimately  set  up  a  claim  for  vested  rights,  which  should  prove  to  be  beyond  the 
control  of  the  municipal  authorities,  or  even  of  the  legislature. 

6.  From  the  form  of  these  grants,  the  manner  of  the  construction  and  opera- 
tion of  the  roads,  and  the  early  current  of  decisions  upon  the  subject,  no  doubt 
was  entertained  tliat  they  would  always  be  regarded  and  treated  as  a  portion  of, 
and  inhering  only  in,  the  highway,  and  as  creating  no  estate  in  the  soil  beyond 
that  of  the  public  easement  for  the  highway, 

7.  This  being  assumed,  the  inquiry  becomes  nice,  and  somewhat  difficult,  as 
to  what  precise  estate  or  interest  is  vested  in  the  corporations.  It  is  certain,  we 
think,  that  the  grant  of  an  act  of  incorporation  to  a  company  for  the  purpose  of 
constructing  and  operating  a  railway  for  the  transportation  of  passengers,  al- 
though located  in  and  along  the  highway,  is  a  franchise,  and  one  of  an  exclusive 
character,  to  some  extent.  The  extent  of  the  exclusiveuess  of  a  grant  of  this 
character,  where  no  exclusive  words  are  contained  in  the  grant,  must  depend 
upon  the  reasonable  and  fair  implications,  to  be  gathered  from  the  nature  of  the 
business,  and  other  surrounding  circumstances.  And  in  a  case  of  this  kind, 
where  the  incorporation  is  exclusively  for  the  purpose  of  transporting  passen- 
gers and  taking  tolls,  we  think  it  must  be  regarded  as  a  fair  implication,  from 
the  verj-  nature  of  the  grant,  the  investment  requisite  to  carry  it  into  operation, 
and  the  necessity  of  avoiding  competition  in  order  to  produce  any  adequate  re- 
turn, that  the  franchise  must  be  considered  as  being  exclusive  of  all  similar 
transportation  upon  the  same  route,  by  mere  private  enterprise.  It  would  be 
little  short  of  absurdity  to  suppose  that  it  could  have  entered  into  the  contem- 
plation of  the  legislature,  or  of  the  companies,  that  after  obtaining  their  location, 
and  after  having  erected  and  equipped  their  roads,  at  large  expense,  it  was  still 
competent  for  any  person,  natural  or  corporate,  at  his  own  mere  option,  to  con- 
struct cars  and  divide  the  business,  by  running  upon  the  same  track  laid  by  such 
company. 

8.  This  will  be  more  obvious  by  considering  the  nature  of  the  business.  It  is 
not  like  ordinary  mechanical  or  manufacturing  business,  which  any  one  may  in- 
stitute at  pleasure.  A  grant  of  incorporation,  for  such  or  any  similar  business, 
implies  nothing  exclusive  in  the  conduct  of  the  business.  The  franchise,  in 
such  a  corporation,  does  not  extend  beyond  the  mere  fact  of  acting  in  a  corporate 
capacity,  or  being  a  corporation.  That  only  is  exclusive  in  the  grant  which  is 
of  a  prerogative  character,  and  requires  the  consent  of  the  sovereign  for  its  cre- 
ation. If  it  were  competent  for  any  one  to  lay  a  passenger  railway  in  the 
streets,  at  his  own  option,  or  if  any  one  could  obtain  snch  a  right  from  the  mu- 

•319 


318  EMINENT  DOMAIN.  CH.  XI. 

nicipal  authority,  or  from  any  sotirce  except  the  legislature,  then  the  grant  of  an 
incorporation  for  carrying  on  the  business  would  not  naturally  be  construed  to 
exclude  others  from  carrying  on  the  same  business,  at  the  same  place.  And 
this  was  the  view  at  first  attempted  to  be  maintained,  as  to  street  railways,  i.  e., 
*  that  the  cities  and  towns  might  create  them,  by  special  grants,  to  individuals  or 
companies. 

9.  But  this  view  has  long  since  been  abandoned,  and  it  is  now  entirely  well 
settled  that  such  a  franchise  in  the  highways  can  only  be  created  by  legislative 
grant.  It  is  a  franchise  to  carry  passengers,  and  to  demand  tolls.  This  is  one 
of  the  prerogatives  of  sovereignty,  and  only  derivable  through  the  action  of  the 
legislature.  It  must,  therefore,  in  its  very  nature,  be  exclusive  of  all  interfer- 
ence from  any  quarter  subordinate  to  the  authority  from  which  it  was  derived. 
There  can  then,  we  think,  be  no  question  whatever,  that  the  franchise  of  these 
street  railway  companies  is  exclusive  of  all  competition,  or  interference  in  their 
business,  except  under  the  paramount  authority  of  the  legislature. 

10.  It  was  indeed  made  a  question  before  us,  how  far  it  was  competent  for 
the  legislature  even,  after  granting  an  exclusive  franchise  of  this  character  to 
one  company,  to  virtually  repeal  it,  by  permitting  other  companies  to  come  upon 
the  same  track  and  do  a  competing  business.  This  is  one  of  those  things,  where 
the  legislative  power  of  a  state  may  sometimes  do  that  indirectly,  provided  they 
act  in  good  faith  (which  is  always  to  be  presumed),  which  they  could  not  do 
directly.  For  instance,  it  could  not  be  claimed  that  the  legislature,  after  cre- 
ating such  a  franchise,  could,  by  a  direct  act  of  legislation,  either  repeal  the 
charter,  or  take  away  the  right  of  compensation  by  way  of  tolls  or  fare.  But 
they  may,  nevertheless,  allow  other  persons,  either  natural  or  corporate,  to  do  a 
similar  business  in  the  same  streets ;  or  to  do  it,  upon  the  tracks  of  an  existing 
company,  by  making  compensation  to  the  other  company,  whenever  in  their 
judgment  the  public  good  requires  it.  In  the  one  case,  the  grant  being  wholly 
independent,  is  understood  to  be  made  because  the  amount  of  travel  is  supposed 
to  require  two  such  modes  of  conveyance ;  and,  in  the  other,  the  compensation 
is  regarded  as  an  equivalent  for  the  use. 

11.  But  where  the  legislature  do  not  create  a  distinct  company  to  do  similar 
business  along  the  same  routes,  it  is  fair  to  conclude  that  there  is  no  purpose  of 
abridging,  or  in  any  manner  qualifying,  the  rights  before  conceded  to  the  first 
company.  And  the  mere  permission  of  a  branch  road  to  come  upon  the  track 
of  an  existing  trunk  route,  where  the  object,  whether  for  the  transportation  of 
its  own  passengers,  or  to  take  up  and  set  down  other  passengers  along  the  line 
of  the  trunk  route,  is  not  specifically  defined,  is  not,  ordinarily,  to  be  so  con- 
strued, as  to  effect  an  essential  abridgment  of  the  rights  and  interests  of  the 
trunk  line.  All  reasonable  implications  should  be  made  in  the  opposite  direc- 
tion, both  upon  the  ground  that  the  legislature  must  be  presumed  to  intend  to 
act  with  entire  justice  towards  the  company  first  chartered,  and  first  investing 
capital  upon  the  route,  and  also,  upon  the  ground  tliat  the  provision  for  com- 
pensation clearly  shows  that  there  was  no  purpose  of  abridging  the  rights  of  the 
first  company,  by  allowing  the  second  company  to  run  its  cars  over  the  track  of 
the  former. 

12.  It  is  upon  this  ground  that  we  have  come  to  the  conclusion  already  stated 

*320 


§  76.  RIGHT  TO   OCCUPY  HIGHWAY.  319 

In  regard  to  compensation  for  the  use  of  a  trunk  line  by  a  branch  company, 
when  it  diverts  a  portion  of  the  traffic.  But  we  cannot  regard  this  rule  of  com- 
pensation, or  the  presumptions  of  law  upon  which  it  is  based,  as  imposing  any 
*  restrictions  upon  the  power  of  the  legislature,  or  that  the  general  law  of  the 
Commonwealth  or  the  Constitution  of  the  United  States  restrains  the  legislature, 
in  regard  to  permitting  subsequently  chartered  companies  to  come  upon  the 
track  of  other  and  older  companies.  From  the  very  fact  that  the  franchise  of 
street  railways  is  made  to  exist  only  in  the  public  easement  of  the  highway,  there 
arises  a  clear  presumption,  that  the  use  of  such  tracks  was  intended  to  remain 
for  ever  subject  to  the  control  of  the  legislature,  and  that  they  could  either  con- 
trol such  use,  by  legislation,  or  make  it  subject  to  the  absolute  control  of  the 
municipalities.  It  does  not  seem  to  us  possible  for  the  companies  to  escape  this 
state  of  uncertainty,  so  long  as  their  franchise  is  vested  only  in  the  public  ease- 
ment of  the  highway,  unless  they  can  induce  the  legislature  to  give  them  exclu- 
sive and  independent  rights  in  the  highway,  by  express  grant ;  and  it  is  doubtful 
whether  even  this  would  bind  future  legislatures. 

13.  A  claim,  for  additional  compensation  to  the  abutters,  has  been  maintained 
against  such  companies,  in  some  states,  wherever  it  becomes  necessary  to  alter 
the  grade  of  the  streets  in  laying  the  rails,  in  such  a  manner  as  to  cause  special 
damage  to  such  adjoining  proprietors.  But  this,  we  think,  unless  allowed  by 
special  statute,  is  a  virtual  concession,  that  the  laying  a  street  railway  may,  in 
certain  contingencies,  prove  an  additional  servitude  upon  the  soil,  requiring 
compensation  beyond  that  of  the  easement  for  the  highway ;  and  if  this  proposi- 
tion be  conceded,  it  will  be  impossible  to  escape  the  conclusion  that  the  street 
railway  is  something  distinct  from  the  public  easement  of  the  highway.  And  if 
it  be  not  a  part  of  the  same  thing,  and  identical  with  it,  then  the  owner  of  the  fee 
of  the  land  in  which  such  easement  exists,  may  always  claim  damages  for  the 
location  of  a  street  railway.  But  this  is  not  the  view  of  the  rights  of  such  com- 
panies wliich  has  generally  been  taken,  or  which  we  think  sound. 

14.  On  the  dther  hand,  if  the  street  railway  is  only  a  part  of  the  highway, 
inherent  in  the  public  easement,  then  no  additional  compensation  to  the  land- 
owner is  due,  in  consequence  of  any  alteration  in  the  grade  of  the  street  or 
highway,  unless  granted  by  special  statute.  That  will  be  only  one  of  those 
legitimate  contingencies  which  were  fairly  within  the  range  of  the  purposes  for 
which  the  easement  of  the  highway  was  originally  taken,  and  which  should  have 
been  taken  into  account,  and  is  therefore  presumed  to  have  been  taken  into 
account,  in  estimating  compi>nsation  to  the  land-owner  in  the  first  instance. 
For,  in  assessing  damages  for  a  highway,  there  must  be  taken  into  the  judgment, 
not  only  the  present  injury,  from  building  the  highway  in  the  first  instance,  but 
from  all  future  and  allowable  alterations  of  the  same.  And  this  will  embrace, 
not  only  the  accommodation  of  the  way  to  the  present  modes  of  ordinary  travel 
and  transportation,  but  to  all  such  modes  of  travel  and  transportation  as  may 
hereafter  arise  in  the  ordinar}'  course  of  improvement,  without  extending  it 
beyond  the  contemplated  use  of  an  ordinarj-  highway.  And  if  the  street  railway 
comes  within  this  range,  the  fact  that  it  is  new,  or  that  in  some  instances  it  may 
require  to  be  accommodated  with  a  diflferent  grade,  to  some  extent,  will  be  no 
ground  for  claiming  additional  compensation  to  the  owner  of  the  fee.     This  is 

♦  321 


320  EMINENT  DOMAIN.  CH.  XI. 

often  true  in  laying  a  plank  road  over  an  ordinary  highway,  *  but  we  are  not 
aware  that  any  additional  compensation  is  ever  required,  on  that  account,  in 
the  case  of  laying  a  plank  road  upon  an  existing  highway.  So,  too,  in  altering 
the  grade  of  the  highway,  without  introducing  any  change  in  the  mode  of 
construction,  great  injurj-  may  occur  to  the  abutters,  and  one  not  contem- 
plated, precisely  in  that  form,  at  the  time  the  land  was  taken ;  and  still  no 
additional  compensation  can  be  claimed,  or  allowed,  unless  by  statute,  since 
it  comes  within  the  range  of  the  purpose  for  which  the  land  was  originally  taken. 
Each  party  assumes  the  risk  of  any  change  in  the  use,  or  its  entire  abandonment 
as  a  highway.  In  the  one  case  no  additional  compensation  can  be  claimed, 
and,  in  the  other,  there  is  no  duty  of  refunding  what  has  been  already  paid  by 
way  of  damages. 

15.  We  must,  therefore,  to  sum  up  the  results  of  the  argument  upon  this 
point,  conclude,  that  the  street  railway  companies  in  the  Commonwealth,  by  the 
grant  of  their  charters,  acquired  a  franchise  of  a  prerogative  character,  not  liable 
to  be  intruded  upon,  after  the  location  and  construction  of  their  roads,  except 
by  authority  derived  from  the  legislature,  or  by  virtue  of  some  condition  annexed 
either  to  the  grant  or  the  location. 

16.  But  we  think,  so  long  as  the  grant  is  not  exclusive  in  terms,  it  must  be 
regarded  as  a  fair  implication,  from  the  fact  of  the  franchise  residing  only  in  the 
public  easement  of  the  highway,  that  the  legislative  authority  of  the  common- 
wealth has  entire  control  of  the  use  of  such  erections  as  are  made  by  virtue  of 
the  first  grant ;  and  that  it  may,  at  any  time,  define  such  use  by  the  public  gen- 
erally; and  by  natural  or  corporate  persons,  for  transporting  passengers  for 
hire,  by  making  compensation.  And  from  the  same  view  it  must  equally 
result,  that  the  legislature  may  delegate  the  control  of  this  use  to  the  municipal 
authorities. 

17.  And  consequently  we  have  not  been  able  to  devise  any  legal  mode  in 
which  the  property  rights  of  these  companies  can,  with  propriety,  so  long  as 
they  exist  only  in  the  public  franchise  of  the  highway,  be  made  more  secure. 
The  franchise  is  exclusive  of  all  interference  except  by  authority  derived  from 
the  legislature,  but  it  exists  where  its  continuance  is  only  at  the  will  of  others 
who  have  the  legitimate  control  of  the  highways. 

18.  If  it  is  taken  or  interfered  with,  by  the  authority  of  the  legislature,  for 
merely  public  uses,  such  as  the  greater  accommodation  of  public  travel,  then  no 
compensation  is  demandable,  since  that  is  one  of  the  conditions  or  contingencies 
upon  which  the  grant  was  accepted.  But  so  far  as  this  franchise  is  taken,  or 
interfered  with,  for  the  advancement  of  private  ends  and  enterprises,  the  first 
grantee  is  entitled  to  full  compensation,  as  much  as  for  any  other  property. 

19.  This,  then,  although  an  exclusive  franchise,  so  far  as  the  carrying  of  pas- 
sengers and  taking  tolls  is  concerned,  is  a  mere  estate  at  wiU,  so  far  as  the  legis- 
lative power  is  concerned,  or  the  general  demands  of  the  public  interest  may 
require,  through  the  action  of  the  municipal  authorities. 

•  822 


§  77.  CONPUCTING   RIGHTS   IN   DIPPERENT   COMPANIES.  821 

•SECTION  XV. 
Conflicting  Rights  in  different  Companies. 

1.   Railuxuf  company  subservient  to  another,   \  2.    Where  no  apparent  conflict  in  route,  flrtt 
can  only  take  of  the  other  land  enough   I  located  acquires  superior  right, 

far  its  track.  I 

§  77.  1.  Where  the  defendants'  statutory  powers  were  subject 
to  those  conferred  upon  the  plaintiffs,  whose  charter  was  first 
granted,  providing  that  the  plaintiffs'  powers  shall  not  be  so  ex- 
ercised as  to  prevent  the  defendants  from  corapulsorily  taking  and 
using  land  sufficient  to  construct  their  branch  lines,  not  exceeding 
twenty-two  feet  in  width,  at  the  level  of  the  rails,  the  plaintiffs 
having  first  purchased,  with  the  consent  of  the  owner,  lauds  which 
the  defendants  proposed  to  take,  beyond  the  twenty-two  feet,  for 
purposes  of  building  stations,  &c.,  it  was  held,  that  the  plaintiffs 
having  occupied  the  ground  first,  were  entitled  to  hold  so  much 
as  was  not  actually  necessary  for  the  formation  of  defendants' 
railway.^ 

2.  Where  two  railway  companies  were  incorporated  to  complete 
independent  lines  across  the  state,  only  the  termini  of  either  being 
prescribed,  there  being  no  apparent  or  necessary  conflict  of  the 
routes,  it  was  held,  tliat  the  company  which  first  surveyed  and 
adopted  a  route,  and  filed  the  survey  in  tlie  proper  office,  were  en- 
titled to  hold  it,  without  reference  to  the  date  of  the  charters,  both 
being  granted  at  the  same  session  of  the  legislature.^ 

>  Lancaster  &  Carlisle  Railw.  v.  The  Maryport  &  Carlisle  Railw.,  4  Railw.  C. 
604;  post,  §  105. 

*  Morris  &  Essex  Railw.  c.  Blair,  1  Stockton,  Ch.  635. 

A  similar  decision,  in  principle,  is  made  in  Gawthem  r.  Stockport,  Disley  & 
W.  Railw.,  29  Law  Times,  308,  Rolls  Court,  March,  1857.  In  this  case  the 
railway  first  chartered  was  laid  out  and  paVtly  built,  but  had  been  lying  by  some 
time,  and  the  Master  of  the  Rolls  held,  a  subse<iuent  railway  was  not  precluded 
from  interfering  with  the  contemplated  route  of  the  first  railway.  One  railway 
may  be  laid  across  the  line  of  another  company,  but  the  latter  will  be  entitled 
to  damages,  although  the  former  is  laid  upon  piles  over  tide  water.  Grand  J.  & 
Depot  Co.  r.  County  Commissioners,  14  Gray,  653.  And  it  is  here  said,  where 
two  railway  companies  file  a  joint  location,  they  are  jointly  liable  for  damages  to 
land-owners ;  and  a  location  may  refer  to  a  plan  so  as  to  make  that  part  of  the 
location. 

21  •  323 


322  EMINENT  DOMAIN.  CH.  XI. 

♦SECTION   XVI. 
Bight  to  Build  over  Navigable   Waters. 

1.  Legislature  may  grant  the  right.  I     8.    Principal  grant  carries  its  incidents. 

2.  Riparian   proprietor    owns    only    to   the  t     9.    Gi-ant  of  a  harbor  includes   necessary 

water.  '  erections. 

3.  His  rights  in  the  water  subservient  to  pub-  :   10,  11.   Large  rivers  held  navigable  in  this 

lie  use.  country. 

4.  Legislative  grant  paramount,  except    the      12.   I^nd  being  cut  off  from  wharves  is  "  in- 


national  rights. 
5.   State  interest  in  flats  where  tide  Ms  and 


6.  Rights  of  adjoining  owners  in  Massachu- 

setts. 

7.  RaiUeoy  grant  to  place  of  shipping. 


juriotisly  affected." 

13.  Paramount  rights  of  Congress  infringed 

creates  a  nuisance.     Party  specially  in- 
jured may  have  action. 

14.  Case  in  New  Hampshire. 

15.  "Obstruction,  if  illegal,  per  se  a  nuisance. 


§  78.  1.  In  regard  to  navigable  streams,  it  seems  to  be  a  con- 
ceded point,  that  the  owner  of  land  adjoining  the  stream  has  no 
property  in  the  bed  of  the  stream,  and  hence  that  the  legislature 
in  England  may  give  permission  to  a  railway  company  to  so  con- 
struct their  road,  as  to  interfere  with  and  alter  the  bed  of  such  a 
stream,  to  the  damage  of  any  owner  of  adjouiing  land,  in  regard  to 
flowage,  or  otherwise,  even  to  the  hinderance  of  accustomed  navi- 
gation, without  compensation ;  and  that  the  railway  company,  in 
constructing  their  road  within  the  provisions  of  the  act,  do  not 
become  liable  to  an  action  for  damages,  to  any  such  proprietor  of 
adjoining  laud.^ 

»  Abraham  r.  Great  Northern  Railw.,  16  Q.  B,  586 ;  s.  c.  5  Eng.  L.  &  Eq. 
258.  "  The  legislature  might  authorize  defendants  to  construct  a  causeway  or 
bridge  across  navigable  or  tide-waters,  although  the  navigation  might  be  thereby 
impaired."  And  in  a  very  recent  case  in  the  Queen's  Bench,  (Jan.  1858),  Re- 
gina  r.  Musson,  8  El.  &  Bl.  900 ;  s.  c.  30  Law  Times,  272,  it  is  held  that  a  pier, 
built  into  the  sea,  is  not  liable  to  the  parish  rates,  except  so  far  as  it  is  above 
high-water  mark.  Lord  Campbell,  Ch.  J.  said,  "  As  to  the  part  between  high 
and  low  water  mark,  it  is  quite  clear  that  the  soil  between  high  and  low  water 
mark  is  in  the  Cro^vn,  and  prima  facie  extra  parochial.  If  so,  the  onus  lies 
on  the  parish  of  showing  it  is  within  the  limits  of  the  parish.  That  may  be  done 
by  evidence  of  perambulating  it,  in  the  parish  bounds,  or  of  reputation."  See 
Parker  v.  Cutler  Milldam  Co.,  20  Maine,  353;  opinion  of  court  in  Brown  c. 
Chadboume,  31  Maine,  9;  Sheplcy,  Ch.  J.,  Rogers  e.  The  Kennebec  &  Port- 
land Railw.,  35  Maine,  319.  So,  too,  to  construct  their  road  across  the  basins 
of  a  water  company,  to  their  injury,  upon  making  compensation.  Boston  Water 
Power  Co.  ».  Boston  &  Worcester  Railw.,  23  Pick.  360;  8.  c.  1  Am,  Railw. 
•324 


§  78.  ERECTIONS   OVER   NAVIGABLE  WATERS.  323 

*  2.  The  same  point  has  been  often  decided  in  this  country.* 
Whether  waters  are  navigable  or  not,  is  determined  by  the  ebb  and 
flow  of  the  tide.  And  although  streams,  above  tliat  point,  are 
navigable  often,  for  steamboats  and  lesser  water  craft,  and  are  pub- 
lic highways  for  such  purposes,  and  often  become  highways  by 
prescription,  for  purposes  of  inferior  navigation,  as  floating  timber, 
and  wood,  and  possibly  they  may  be  regarded  as  such  even  inde- 
pendent of  such  prescription ;  yet  the  ownership  of  the  riparian 
proprietor  to  the  middle  of  the  stream,  ad  medium  filum  aquce^.\% 
not  excluded,  except  in  tide-waters,'^  and  such  large  rivers,  in  this 
country,  as  by  authority  of  Congress  or  common  consent  have  ac- 
quired or  assumed  the  character  of  navigable  waters,  although  not 
coming  strictly  within  the  common-law  definition.* 

3.  But  in  tide-waters,  and  navigable  lakes,  the  rights  of  the 
owner  of  land  adjoining  such  waters,  in  the  stream  are  subservient 
to  the  public  rights,  and  are  consequently  subject  to  legislative 
control,  and  any  loss  the  owner  of  such  land  may  thereby  sustain 
is  damnum  absque  injuria.* 

*  4.  It  seems  to  be  considered,  that  the  state  legislatures  have 
unlimited  power  to  erect  bridges  and  railways,  and  make  any  other 
public  works  across  navigable  waters,  subject  only  to  the  paramount 
authority  of  the  national  government.^ 

C.  298.  The  grant  of  power  to  construct  a  railway  between  two  points,  car- 
ries authority  to  cross  navigable  waters,  if  that  is  reasonably  necessary,  in  the 
construction  of 'the  works.  Fall  River  Iron  Works  v.  Old  Colony  &  Fall  River 
Railw.,  5  Allen,  221. 

*  Gould  r.  Hudson  River  Railw.,  2  Selden,  622 ;  post,  §  206. 

'  1  Hargrave's  Law  Tracts,  by  Lord  Hale,  12,  13,  85 ;  Angell  on  Tide-Waters, 
c.  VL  pp.  171,  172,  173,  174. 

*  Chaniplain  &  St.  Lawrence  Railw.  v.  Valentine,  19  Barb.  484.  But  in  Bell 
r.  Gough,  3  Zab.  624,  it  is  held,  that  if  the  riparian  owner  have  made  improve- 
ments on  the  land  below  high  water,  so  jA  to  have  reclaimed  it,  the  part  so  re- 
claimed belongs  to  him,  and  cannot  be  granted  by  the  state.  And  three  of  the 
judges,  in  the  trial  of  this  case,  in  the  Court  of  Appeals,  which  consisted  of  nine 
judges,  held  that  riparian  owners  have  a  vested  right  in  the  benefits  and  advan- 
tages arising  from  their  adjoining  tlie  water,  of  which  they  cannot  be  deprived 
without  compensation.  But  this  case,  although  exhibiting  great  research  and 
ability  and  considerable  learning,  is  not  altogether  in  accordance  with  the  general 
current  of  the  decisions  upon  the  subject,  and  is  probably  based  upon  the  custom 
or  usage  which  has  prevailed  to  a  great  extent  in  some  sections  of  this  country 
firom  its  first  settlement,  originally  founded  upon  Colonial  statutes  probably,  and 
in  others,  perhaps,  growing  up  by  common  consent,  as  a  kind  of  local  law. 

*  The  People  p.  Rensselaer  &  Saratoga  Railw.,  15  Wend.  113 ;  Bailey  v.  Phil. 

*  325,  326 


324  EMINENT   DOMAIN.  CH.  XI. 

*5.  The  commonwealth  of  Massachusetts  has  no  interest  in 
flats  where  the  tide  ebbs  and  flows,  which  it  is  necessary  to  have 

&  WU.  Railw.,  4  Hairing.  389;  People  v.  City  of  St.  Louis,  5  Oilman,  351; 
Spooner  v.  McConnell,  1  McLean,  C.  C.  337 ;  State  of  Pennsylvania  v.  Wheel- 
ing Bridge  Company,  13  How.  518 ;  Wilson  v.  The  Blackbird  Creek  Marsh  Co., 
2  Pet.  (U.  S.)  245;  Hogg  v.  The  Zanesville  Canal  Co.,  5  Ham.  410;  United 
States  V.  The  N.  Bedford  Bridge  Co.,  1  W.  &  M.  401 ;  Atty.-Gen.  r.  Hudson 
River  Railw.,  1  Stockton,  Ch.  526;  Getty  v.  Same,  21  Barb.  617. 

In  the  late  case  of  Smith  v.  Marj-land,  18  How.  (U.  S.)  71,  it  is  held  that  the 
soil,  in  the  shores  of  Chesapeake  Bay,  in  the  state  of  Marj'land,  below  low-water 
mark,  belongs  to  the  state,  subject  to  any  prior  lawful  grants  by  the  state,  or  the 
sovereign  power,  before  the  Declaration  of  Independence.  But  that  this  right 
of  soil  in  the  state  is  a  trust,  for  the  enjojTnent  by  the  citizens  of  certain  public 
rights,  among  which  is  the  common  right  of  fishery' ;  that  the  state  may  lawfully 
regulate  the  exercise  of  this  right,  and  declare  vessels  forfeit,  for  violations  of 
regulations  so  established ;  and  that  the  exercise  of  such  powers  by  the  state  is 
no  infringement  of  the  paramount  authority  of  Congress,  or  of  the  exclusive 
admiralty  and  maritime  jurisdiction  of  the  United  States  courts. 

In  the  case  of  Milnor  v.  The  Railway  Companies,  and  Others  v.  The  Plank- 
Road  Companies,  in  New  Jersey,  before  the  Circuit  Court  of  the  United  States, 
where  it  was  sought  to  restrain  the  companies  from  bridging  the  Passaic  River, 
below  Newark,  which  had  been  erected  into  a  port  of  entry  by  Congress,  and 
had  some  foreign  commerce,  and  some  internal  navigation,  the  following  points 
were  ruled  by  Mr.  Justice  Grier,  6  Law  Reg.  6  :  "A  court  of  the  United  States 
has  no  jurisdiction  to  restrain,  by  injunction,  the  erection  of  a  bridge  over  a 
navigable  river  lying  wholly  within  the  limits  of  a  particular  state,  where  such 
erection  is  authorized  by  the  legislature  of  the  state,  though  a  port  of  entrj'  has 
been  created  by  Congress  above  the  bridge.  Dicta,  in  Devoe  v.  Penrose  Ferry 
Bridge  Co.,  3  Am,  L.  Reg.  83,  overruled;  and,  in  Penns3-lvania  t;.  Wheeling 
Bridge  Co.,  13  How.  579,  explained. 

The  point  overruled  by  the  learned  judge  is  thus  stated  by  him:  "That 
although  the  courts  of  the  United  States  cannot  punish,  by  indictment,  the 
erection  of  a  nuisance  on  our  public  rivers,  erected  by  authority  of  a  state,  yet 
that  as  courts  of  chancery  they  may  interfere  at  the  instance  of  an  individual 
or  corporation  who  are  likely  to  suflFer  some  special  injury,  and  prohibit,  by 
injunction,  the  erection  of  nuisances  to  the  navigation  of  the  great  navigable 
rivers  leading  to  the  ports  of  entry  within  a  state."     3  Amer.  Law  Reg.  p.  83. 

The  following  extract  from  the  opinion  gives  the  point  of  the  decision  :  "  The 
Passaic  River,  though  navigable  for  a  few  miles  within  the  state  of  New  Jersey, 
and  therefore  a  public  river,  belongs  wholly  to  that  state ;  it  is  no  highway  to 
other  states,  no  commerce  passes  thereon  from  states  below  the  bridge  to  states 
above.  Being  the  property  of  the  state,  and  no  other  state  having  any  title  to 
interfere  with  her  absolute  dominion,  she  alone  can  regulate  the  harbors,  wharves, 
ferries,  or  bridges,  in  or  over  it.  Congress  has  the  exclusive  power  to  regulate 
commerce,  but  that  has  never  been  construed  to  include  the  means  by  which 
commerce  is  carried  on  within  a  state.  Canals,  turnpikes,  bridges,  and  railways 
are  as  necessary  to  the  commerce  between  and  through  the  several  states,  as 
*327 


§  78.  ERECTIONS   OVER   NAVIGABLE   WATERS.  325 

*  apprised,  under  the  statute,  when  such  land  is  taken,  as  appurte- 
nant to  the  upland,  for  the  purpose  of  building  a  *  railway.^    And  as 

rivers.  Yet  Congress  has  never  pretended  to  regulate  them.  When  a  city  is 
nuule  a  port  of  entry.  Congress  does  not  thereby  assume  to  regulate  its  harbor,  or 
detract  from  the  sovereign  rights  before  exercised  by  each  state  over  her  own 
public  rivers.  Congress  may  establish  post-offices  and  post-roads  ;  hut  this  does 
not  affect  or  control  the  absolute  power  of  the  state  over  its  highways  and 
bridges.  If  a  state  does  not  desire  the  accommodation  of  mails  at  certain  places, 
and  will  not  make  roads  and  bridges  on  which  to  transport  them.  Congress  can- 
not compel  it  to  do  so,  or  reijuire  it  to  receive  favors  by  compulsion.  Constitut- 
ing a  town  or  city  a  port  of  entry,  is  an  act  for  the  convenience  and  benefit  of 
such  place,  and  its  commerce ;  but  for  the  sake  of  this  benefit  the  constitution 
does  not  require  the  state  to  surrender  her  control  over  the  harbor,  or  the  high- 
ways leading  to  it,  either  by  land  or  water,  provided  all  citizens  of  the  United 
States  enjoy  the  same  privileges  which  are  enjoyed  by  her  own. 


•  Walker  v.  Boston  &  M.  Railw.,  8  Cush.  1 ;  s.  c.  1  Am.  Railw.  C.  462. 
Under  a  colonial  ordinance  of  1647,  of  Massachusetts,  the  flats  on  creeks,  coves, 
and  arms  of  the  sea,  where  the  tide  ebbs  and  flows,  to  the  extent  of  one  hundred 
rods,  are  appurtenant  to  the  upland,  and  the  owners  of  the  adjoining  land  have 
an  estate  in  fee  therein,  subject  to  the  right  of  the  Commonwealth,  for  making 
public  erections,  which  is  paramount,  and  subject  also  to  such  restraints  and 
limitations  of  the  proprietors'  use  of  them,  as  the  legislature  may  see  fit  to  im- 
pose for  the  preservation  and  protection  of  public  and  private  rights.  Common- 
wealth r.  Alger,  7  Cush.  53.  And  a  similar  custom  or  usage  prevailed  to  some 
extent  in  some  of  the  other  American  colonies,  traces  of  which  will  be  found 
in  some  of  the  more  recent  decisions  in  those  states,  which  have  succeeded  them. 

The  (question  of  the  right  of  riparian  owners  along  the  margin  of  the  sea, 
where  the  tide  ebbs  and  flows  upon  sea  flats,  in  the  state  of  Massachusetts,  is 
more  extensively  and  more  learnedly  discussed  in  Commonwealth  r.  Iloxbury, 
9  Gray,  4.51,  and  the  reporter's  note,  by  the  present  Mr.  Justice  Gray  of  the 
Supreme  Judicial  Court,  than  in  any  other  place  within  our  knowledge.  The 
leading  propositions  decided  by  the  case,  are : 

1.  The  Commonwealth  is  the  owner  in  fee  of  all  channels,  lands,  and  flats 
below  low-water  mark,  and  more  than  one  hundred  rods  below  high-water  mark. 

2.  The  charter  of  the  colony  of  Massachusetts  conveyed  to  the  grantees  all 
public  and  private  rights  in  the  sea-shore  between  high  and  low  water  mark,  with- 
out express  words. 

3.  An  order  of  the  Greneral  Court,  that  all  the  ground  lying  between  two  towns 
shall  belong  to  one  of  them,  conveys  no  right,  more  than  one  hundred  rods  below 
high-water  mark. 

4.  An  act  granting  permission  to  a  mill  corporation  to  exclude  the  tide  waters 
from  a  portion  of  the  flats,  and  use  it  as  a  basin  for  the  purposes  of  a  mill  power, 
does  not  release  the  title  of  the  Commonwealth  to  such  flats. 

5.  An  act  defining  the  boundary  between  two  towns,  and  recognizing  some 
deviations  from  the  original  or  natural  boundarj-,  and  some  exchanges  of  terri- 
tory, will  not  imply  any  relinquishment  of  title  on  the  part  of  the  Commonwealth. 

•  328,  329 


326  EMINENT  DOMAIN.  CH.  XI. 

the  owner  has  the  right  to  raise  such  flats,  by  filling  up,  if  he  is 
compelled  to  do  more  filling  up  to  secure  free  access  to  other 

"  Whether  a  bridge  over  the  Passaic  will  injuriously  affect  the  harbor  of  New- 
ark, is  a  question  which  the  people  of  New  Jersey  can  best  determine,  and  have 
a  right  to  determine  for  themselves.  If  the  bridges  be  an  inconvenience  to 
sloops  and  schooners  navigating  their  port,  it  is  no  more  so  to  others  than 
to  them.  I  see  no  reason  why  the  state  of  New  Jersey,  in  the  exercise  of  her 
absolute  sovereignty  over  the  river,  may  not  stop  it  up  altogether,  and  establish 
the  harbor  and  wharves  of  Newark  at  the  mouth  of  the  river.  It  would  affect 
the  rights  of  no  other  state.  It  would  still  be  a  port  of  entry,  if  Congress  chose 
to  continue  it  so.  Such  action  would  not  be  in  conflict  with  any  power  vested 
in  Congress.  A  state  may,  in  the  exercise  of  its  reserved  powers,  incidentally 
affect  subjects  intrusted  to  Congress  without  any  necessarj-  collision.  All  rail- 
ways, canals,  harbors,  or  bridges,  necessarily  affect  the  coiftmerce  not  only 
within  a  state  but  between  the  states.  Congress,  by  conferring  the  privilege  of 
a  port  of  entry  upon  a  town  or  city,  does  not  come  in  conflict  with  the  police 
power  of  a  state  exercised  in  bridging  her  own  rivers  below  such  port.  If  the 
power  to  make  a  town  a  port  of  entry  includes  the  right  to  regulate  the  means 
by  which  its  commerce  is  carried  on,  why  does  it  not  extend  to  its  turnpikes, 
railways,  and  canals,  to  land  as  well  as  water?  Assuming  the  right  (which  I 
neither  afiirm  nor  deny)  of  Congress  to  regulate  bridges  over  navigable  rivers 
below  ports  of  entrj',  yet,  not  having  done  so,  the  courts  cannot  assume  to  them- 
selves such  a  power.  There  is  no  act  of  Congress  or  rule  of  law  which  courts 
could  apply  to  such  a  case.  It  is  possible  that  courts  might  exercise  this  discre- 
tionary power  as  judiciously  as  a  legislative  body,  yet  the  praise  of  being  'a  good 
judge '  could  hardly  be  given  to  one  who  would  endeavor  to  '  enlarge  his  juris- 
diction '  by  the  assumption,  or  rather  usurpation,  of  such  an  undefined  and  dis- 
cretionary power. 

"  The  police  power  to  make  bridges  over  the  public  rivers  is  as  absolutely  and 
exclusively  vested  in  a  state  as  the  commercial  power  is  in  Congress :  and  no 
question  can  arise  as  to  which  is  bound  to  give  way,  when  exercised  over  the 
same  subject-matter,  till  a  case  of  actual  collision  occurs.  This  is  all  that  was 
decided  in  the  case  of  Wilson  v.  The  Blackbird  Creek,  &c.,  2  Peters,  245.  That 
case  has  been  the  subject  of  much  comment,  and  some  misconstruction.  It  was 
never  intended  as  a  retraction  or  modification  of  any  thing  decided  in  Gibbons 
V.  Ogden,  or  to  deny  the  exclusive  power  of  Congress  to  regulate  commerce. 
Nor  does  the  Wheeling  Bridge  case  at  all  conflict  with  either.  The  case  of 
Wilson  V.  The  Blackbird  Creek,  &c.,  governs  this,  while  it  has  nothing  in  com- 
mon with  that  of  the  Wheeling  Bridge." 

And  where  the  legislature  of  the  colony  of  New  Jersey,  at  an  early  day  (1760), 
passed  an  act  to  enable  the  owners  of  meadows  along  a  small  creek  emptying 
into  the  Delaware  River,  and  into  which  the  tide  ordinarily  flowed  for  about  two 
miles,  to  support  and  maintain  a  dam,  to  shut  out  the  tide  from  the  creek,  for 
the  puqwse  of  draining  such  meadows :  and  enacted  that  said  bank,  dam,  and 
all  other  waterworks  already  erected,  or  which  should  thereafter  be  found  neces- 
sary to  be  erected,  for  the  more  effectual  preventing  the  tide  from  overflowing 
the  meadows  lying  on  the  said  creek,  should  be  erected,  supported,  and  main- 


§  78.  ERECTIONS   OVER  NAVIGABLE  WATERS.  327 

lands,  by  reason  of  the  construction  of  a  railway,  *it  is  proper  to  be 
considered  by  the  jury  in  estimating  land  damages  to  such  owners.' 
But  the  owner  of  a  tide-mill  has  no  right  to  have  such  riparian 
flats,  as  he  owns,  kept  open  and  unobstructed  for  the  free  flow  of 
tide-water  to  his  mill. 

6.  The  adjoining  owners  of  such  flats  in  Massachusetts  have  the 
riglit  to  build  solid  structures  to  a  certain  extent,  and  thus 
obstruct  the  ebb  and  flow  of  the  tide,  if  in  so  doing  they  do  not 
wholly  obstruct  the  access  of  other  proprietors  to  their  houses  and 
lands ;  and  if  the  mill-owner  and  other  proprietors  suffer  damage 
therefrom,  it  is  damnum  absque  injuria.^    "  Therefore,"  say  the 

tained  at  the  equal  expense  of  all  the  owners  and  possessors  of  the  meadows, 
defining  the  limits  up  the  creek ;  and  provided  the  manner  in  which  the  natural 
watercourse  of  the  creek  should  be  kept  clear,  and  for  the  election  yearly,  by 
all  the  land-owners,  of  two  managers,  empowered  to  assess  the  owners  or  occu- 
piers of  such  meadows,  as  they  should  deem  necessary  for  repairing  and  main- 
taining the  dam  ;  and  the  act  had  been  accepted  by  the  owners  of  the  meadow, 
managers  elected,  and  the  dam  repaired,  under  the  provisions  of  the  act,  and  a 
large  amount  expended,  from  time  to  time,  after  the  passage  of  the  act ;  and 
where  the  legislature  in  the  year  1854  passed  an  act,  declaring  this  creek  to  be 
a  public  highway  in  all  respects,  as  fully  as  it  was  before  the  erection  of  such 
dam,  and  empowering  the  municipal  authorities  to  remove  the  dam,  and  open 
the  navigation : 

It  was  held,  upon  a  bill  filed  in  equity  to  restrain  the  committee  of  the  town- 
ship from  performing  this  duty,  so  imposed  upon  them ; 

That  the  legislature  had  the  right  to  make  the  grant,  there  being  nothing  to 
show  that  the  public  interest  demanded  the  navigation  of  the  creek ; 

That  it  does  not  follow,  that  every  creek  or  rivulet,  into  which  the  tide  ebbs 
and  flows,  is  to  be  regarded  as  navigable  water,  in  such  sense  as  to  be  beyond  the 
control  of  the  legislature,  except  as  a  public  highway ;  and  the  legislature  is  the 
sole  judge,  to  determine  when  such  streams  shall  be  considered  navigable  rivers, 
and  be  maintained  and  protected  as  such ;  that  the  act  of  1760  did  not  only 
authorize  the  owners  of  the  meadows  to  continue  the  dam,  but  it  gave  the 
authority  of  the  state  to  compel  its  continuance;  that  the  act  of  1854  was  in 
violation  of  the  United  States  Constitution,  inhibiting  the  several  states  from  pass- 
ing laws  impairing  the  obligation  of  contracts.  It  was  a  virtual  repeal  of  the  former 
act,  under  which  rights  had  become  vested,  and  valuable  property  acquired ; 

That  the  act  of  1854  was  also  repugnant  to  the  constitution  of  the  state,  as  a 
taking  of  private  property  for  public  use,  without  just  compensation  ;  a  partial 
destruction  or  diminution  of  the  value  of  property,  being  to  that  extent,  a  taking. 
Glover  r.  Powell,  2  Stockton's  Ch.  211. 

'  Commonwealth  r.  Boston  &  Maine  Railw.,  3  Cuah.  25;  8.  c.  1  Am.  Railw. 
C.  482 ;  Fitchburg  Railw.  r.  Boston  &  Maine  Railw.  3  Cash.  68 ;  8.  c.  1  Am. 
Railw.  C.  608. 

^  Davidson  v.  Boston  &  M.  Railw.,  3  Gush.  91 ;  s.  c.  1  Am.  Railw.  C.  534. 

•330 


328  EMINENT   DOMAIN.  CH.  XI. 

court,  "  80  far  as  the  railroad  erected  by  the  legislature  affected 
the  right  of  the  claimants  to  pass  and  repass  to  and  from  their 
lauds  and  wharve.s  with  vessels,  it  was  a  mere  regulation  of  a  pub- 
lic right,  and  not  a  taking  of  private  property  for  a  public  use,  and 
gave  no  claim  for  damages." 

7.  The  grant  of  a  railway  "  to  the  place  of  shipping  lumber  " 
on  a  tide-water  river,  justifies  an  extension  across  flats  and  over 
tide-water  to  a  point  at  whicli  lumber  can  be  conveniently  shipped.^ 

8.  In  a  recent  case  in  the  House  of  Lords,^**  it  was  held,  that 
where  a  statute  authorizes  a  company  to  construct  certain  works, 
as  a  harbor,  it  is  to  be  presumed  they  have  power  to  execute  all 
works  incidental  to  their  main  purpose,  and  whicli  they  deem 
necessary,  provided  they  act  bona  fide. 

9.  Accordingly,  when  public  trustees  for  improving  the  naviga- 
tion of  the  Clyde  were  authorized  by  statute  to  acquire  lands 
adjoining  the  river,  and  to  construct  a  quay,  or  harbor,  and  having 
acquired  part  of  A.'s  land,  proposed  to  erect  a  large  goods-shed 
fronting  the  river,  and  between  the  rest  of  A.'s  land  and  *  the  river, 
it  was  held,  that  although  the  statute  gave  no  express  power  to 
erect  sheds,  it  must  be  presumed  that  a  harbor,  equipped  with 
all  the  most  approved  appliances  for  trade,  was  intended  by 
the  legislature,  and  that  therefore  a  power  to  erect  sheds  was 
implied.^*^ 

10.  An  interesting  case  ^^  has  recently  been  determined  by  the 

»  Peavy  ».  The  Calais  RaUwl,  30  Maine,  498;  8.  c.  1  Am.  Railw.  C.  147. 
See  also  Babcock  r.  Western  Railw.,  9  Met.  553;  8.  c.  1  Am.  Railw.  C.  399. 
So  the  grant  of  a  railway  between  certain  termini,  which  line  passes  over  navi- 
gable rivers,  authorizes  the  company  to  bridge  such  rivers.  Attorney-Gen.  v. 
Stevens,  Saxton,  Ch.  369. 

"  Wright  V.  Scott,  34  Eng.  L.  &  Eq.  1 ;  ante,  §  63. 

"  McManus  r.  Carmichael,  5  Am.  Law  Reg.  593.  It  is  maintained  in  this  case, 
with  great  labor  and  research,  that  a  large  number  of  the  states  have  adopted 
similar  views  in  regard  to  their  large  rivers.  See  also  Bowman  r.  Wathen,  2 
McLean's  C.  C.  376,  where  the  learned  judge  of  that  circuit  thus  lays  down  the 
law,  in  regard  to  the  shores  of  the  Ohio  river :  *'  On  navigable  streams  the  ripa- 
rian right  we  suppose  cannot  extend  generally  beyond  high-water  mark.  For 
certain  purposes,  such  as  the  erection  of  wharves  and  other  structures  for  the 
convenience  of  commerce,  and  which  do  not  obstruct  the  navigation  of  the  river, 
it  may  be  exercised  beyond  this  limit.  But  in  the  present  case  this  inquiry  is 
not  important.  It  is  enough  to  know  that  the  riparian  right  on  the  Ohio  River 
extends  to  the  water,  and  that  no  supervening  right  over  any  part  of  this  space 
can  be  exercised  or  maintained  without  the  consent  of  the  proprietor.  He  has 
the  right  of  fishery,  of  ferrj',  and  every  other  right  which  is  properly  appurte- 
*331 


§  78.  ERECTIONS   OVER  NAVIGABLE   WATERS.  329 

Supreme  Court  of  Iowa,  in  regard  to  the  important  question,  to 
what  extent  tlie  large  rivers  in  this  country,  as  the  Mississippi,  are 
to  be  regarded  as  navigable  waters,  above  where  the  tide  ebbs  and 
flows. 

11.  It  is  there  held,  that  all  waters  are  to  be  regarded  as  navi- 
gable, above  where  the  tide  ebbs  and  flows,  which  are  of  common 
use  to  all  the  citizens  of  the  republic  for  purposes  of  navicjation,  or 
that  navigability,  in  fact,  is  to  be  regarded  as  the  decisive  test, 
rather  than  the  ebb  and  flow  of  the  tide.  And  it  is  here  main- 
tained, that  the  acts  and  declarations  of  the  United  States  con- 
stitute the  Mississippi  a  public  highway,  and  that  consequently  the 
riparian  proprietors  have  no  interest  in  the  lands  below  high-water 
mark. 

12.  And  where  one,  upon  the  shore  of  a  navigable  stream  or 
arm  of  the  sea,  is  cut  ofi"  by  a  railway  or  other  public  work  from 
*  all  communication  with  the  navigation,  to  the  injury  of  wharves 
or  other  erections  which  the  party  made  upon  his  land,  it  has  been 
held  that  such  person  is  entitled  to  damages  under  the  statutes 
allowing  parties  compensation  where  their  estate  is  "  injuriously 
afiected."  ^ 

13.  And  it  seems  to  be  regarded  as  settled,  that  where  the 
grant  of  any  authority,  by  the  state  legislature,  in  regard  to  naviga- 
ble waters,  in  its  exercise  works  an  interference  with  the  exclusive 
power  of  Congress  to  regulate  commerce,  whether  foreign  or  in- 
ternal, such  interference  being  unlawful  is  a  nuisance,  and  any 
private  person  suffering  special  damage  thereby  is  entitled  to  an 
action  at  law,  or  to  maintain  a  bill  in  equity  for  a  perpetual  injunc- 
tion.^^ 

nant  to  the  soil.  And  be  holds  every  one  of  these  rights  by  as  sacred  a  tenure  as 
be  holds  the  land  from  which  they  emanate.  The  state  cannot,  either  directly 
or  indirectly,  divest  him  of  any  one  of  these  rights,  except  by  a  constitutional 
exercise  of  the  power  to  appropriate  private  property  for  public  purposes.  And 
any  act  of  the  state,  short  of  such  an  appropriation,  which  attempts  to  transfer 
any  of  these  rights  to  another,  without  the  consent  of  the  proprietor,  is  inopera- 
tive."    See  also  Lehigh  Valley  Railw.  r.  Trone,  28  Penn.  St.  206. 

>*  BeU  V.  HuU  &  Selby  Railw.,  6  M.  &  W.  699. 

"  State  of  Pennsylvania  ».  Wheeling  Bridge  Co.,  13  How.  618;  8.  c.  18  id. 
421.  The  same  principle  is  recognized  in  other  cases.  Works  ».  Junction  Railw., 
6  McLean,  425;  United  States  v.  Railroad  Bridge  Co.,  6  id.  617. 

When  the  case  of  Pennsylvania  v.  Wheeling  Bridge  Co.  was  last  before  the 
court,  it  was  held,  that  the  paramount  authority  of  Congress,  in  the  regulation 
of  commerce,  included  the  power  to  determine  what  was  an  obstruction  to  nav- 

•332 


330 


EMINENT  DOMAIN. 


CH.  XI. 


14.  The  questions  are  very  numerous  which  have  arisen  in  re- 
gard to  the  conflicting  rights  of  different  grantees  affecting  fran- 
chises and  easements  of  different  kinds.  In  a  case  in  New  Hamp- 
shire,^* some  questions  affecting  the  construction  of  grants,  and 
reservations  of  this  kind,  are  very  extensively  discussed. 

*  15.  It  seems  to  be  well  settled,  both  in  England  and  in  this 
country,  that  if  there  is  no  legal  authority  for  the  erection  of  a 
pier  in  a  navigable  river,  such  erection  will  become  a  nuisance 
per  86,  and  that  no  evidence  can  be  received  to  show  that 
although  illegal  it  will  do  no  harm,  that  question  being  wholly 
immaterial.^ 

SECTION  XVII. 


Obstruction  of  Streams  by  Company^s  Works. 


1.  Cannot  divert  stream,  tvithout  compensa- 

tion. 

2.  Company  liable  for    defective    construc- 

tion. 

3.  So  also  if  they  use  defective  works,  built 

by  others. 

4.  Company  liable  to  action,  where  mandamus 

will  not  lie. 


Company  liable  for  defective  works,  done 
according  to  their  plans. 

When  a  railway  "cuts  off"  wharves 
from  the  navigation. 

Stream  must  be  restored  and  maintained. 

Company  cannot  cast  surface  water  on 
adjoining  land  except  from  strict  neces- 
sity. 


§  79.  1.  In  regard  to  the  obstruction  of  streams,  by  building 
railways,  the  better  opinion  seems  to  be,  that  the  company  are 
bound  to  do  as  little  damage  to  riparian  proprietors  as  is  reason- 

igation.  And  Congress  having  legalized  the  bridge  of  defendants,  after  the 
judgment  of  the  court  to  abate  it,  but  before  it  was  carried  into  effect,  it  was 
held,  that  the  occasion  for  executing  the  judgment  was  thereby  removed.  Air. 
Justice  Nelson,  p.  432,  thus  lays  down  the  law,  as  to  streams  under  state  con- 
trol :  — 

"  The  purely  internal  streams  of  a  state,  which  are  navigable,  belong  to  the 
riparian  owners  to  the  thread  of  the  stream,"  and  they  have  a  right  to  use  them, 
"  subject  to  the  public  right  of  navigation."  —  "  They  may  construct  wharves  or 
dams  or  canals,  for  the  purpose  of  subjecting  the  stream  to  the  various  uses  to 
which  it  may  be  applied,  subject  to  this  public  easement.  But  if  these  structures 
materially  interfere  with  the  public  right,  the  obstruction  may  be  removed  or 
abated  as  a  public  nuisance."  —  "  These  purely  internal  streams  of  a  state,  as  to 
the  public  right  of  navigation,  are  exclusively  under  the  control  of  the  state 
legislature."  And  although  erections  authorized  by  grant  from  the  state  legis- 
lature cause  "  real  impediment  to  the  navigation,"  tliey  are  nevertheless  la>vful, 
and  the  riparian  owner  has  no  redress.     See  also  Morgan  v.  King,  18  Barb.  277. 

"  Goodrich  v.  Eastern  Railw.  Co.,  37  N.  H.  149. 

"  The  People  v.  VanderbUt,  38  Barb.  282. 
*333 


§  79.  ERECTIONS  OBSTRUCTING   STREAMS.  331 

ably  consistent  witli  the  enjoyment  of  their  grant.^  The  state 
cannot  grant  the  power  to  divert  a  stream  of  water  without  com- 
pensation.^ 

2.  Thus  if  by  making  needless  obstructions  in  streams,  in  the 
erection  of  bridges,  or  by  imperfect  or  insufficient  sluices  or  ducts 
for  the  passage  of  streams,  intersected  t>y  a  railway,  the  land  or 
adjoining  property  is  injured,  the  company  are  liable.' 

3.  So,  too,  the  company  are  liable  to  pay  damages  for  an  injury 
caused  to  the  plaintiff,  by  flowing  his  land  in  a  great  freshet,  in 
consequence  of  their  bridges  damming  up  the  water,  although  the 
bridges  were  erected  by  another  company,  before  the  defendants* 
company  was  chartered,*  and  there  had  been  no  request  to  the 
defendants  to  remove  the  obstruction.^ 

*  4.  And  where  the  waters  on  certain  lowlands  were  flowed  back 
upon  the  plaintiff''s  land,  by  reason  of  insufficient  openings  in  a 
railway  constructed  across  such  lowlands,  it  was  held  that  the 
company  were  liable  to  make  good  the  damages  sustained  by  plain- 
tiff", although  no  statute  required  them  to  make  the  openings,  and 
they  could  not  be  compelled  to  do  so  by  writ  of  mandamus.^  So, 
too,  in  regard  to  other  public  works,  if  damage  accrue  to  others  in 
consequence  of  their  imperfect  construction,  the  proprietors  are 

'  Boughton  ».  Carter,  18  Johns.  405;  Hooker  r.  N.  H.  &  Northampton  Co., 
14  Conn.  146. 

*  Gardner  r.  Newburgh,  2  Johns.  Ch.  162. 

*  Hatch  p.  Vermont  Central  Ilailw.,  25  Vt  49  d.  seq. ;  Mellen  v.  Western 
Railw.,  4  Gray,  301 ;  March  r.  C.  &  P.  Railw.,  19  N.  H.  372. 

*  Brown  r.  Cayuga  &  Susquehannah  Railw.,  2  Kern.  386. 

*  Per  Denin,  J.,  2  Kern.  486.  But  the  question  in  regard  to  the  liability  of 
the  company  for  continuing  the  obstruction,  without  notice  to  remove  it,  was 
not  decided  by  the  court.  This  subject,  in  regard  to  the  necessity  of  a  special 
request,  is  somewhat  discussed  in  Norton  v.  Valentine,  14  Vt.  239,  244.  In 
Hubbard  v.  Russell,  24  Barb.  404,  it  is  held,  that  in  order  to  recover  damages  of 
the  *•  continuator  of  a  private  nuisance,  originally  erected  by  another,"  there 
must  be  proof  of  a  request  to  remove  the  same.  But  where  a  railway  company 
bought  up  a  navigation  company,  and  suffered  the  works  of  that  company  to 
fall  to  decay,  so  that  damage  was  suffered  by  a  municipal  corporation,  in  regard 
to  their  harbor,  it  was  held  the  company  were  liable ;  although  only  a  nonfea- 
sance in  form,  it  operated  substantially  as  a  misfeasance,  they  having  maintained 
and  used  the  locks  of  the  navigation  company  in  such  a  state  as  to  cause  the 
injury.  Preston  r.  Eastern  Counties  Railw.,  30  Law  Times,  288;  8.  c.  worn. 
Preston  t.  Norfolk  Railw.,  2  H.  &  N.  735. 

*  Lawrence  r.  Great  Northern  Railw.,  4  Eng.  L.  &  Eq.  266;  8.  c.  16  Q.  B. 
643,  and  6  Railw.  C.  656. 

•834 


332  EMINENT  DOMAIN.  CH.  XI. 

liable,  as  a  municipal  corporation,  for  insufficient  sewers,  whereby 
plaintiff's  factory  was  overflowed  in  a  freshet,  and  the  property 
therein  seriously  injuredJ 

5.  In  a  case,  where  the  plaintiff's  garden  was  overflowed,  by 
the  manner  in  which  an  excavation  was  made,  in  the  course  of 
construction  of  a  railway  across  a  road,  or  highway,  by  carelessly 
cutting  into  a  drain,  or  culvert,  and  letting  out  the  water,^  it 
seems  to  have  been  admitted,  on  all  hands,  that  the  company 
would  have  been  liable  for  the  injury  if  it  had  been  done  by  per- 
sons under  their  control,  or  in  accordance  with  the  directions  of 
their  surveyor  or  engineers.^ 

6.  And  where  the  plaintiff  owns  a  dock  on  the  east  side  of 
Hudson  River,  on  the  margin  of  a  bay,  under  a  charter  from  the 
*  state,  in  1849,  and  the  Hudson  River  Railway,  in  pursuance  of 
its  charter,  granted  in  1846,  constructed  their  road  across  the 
bay,  on  piles,  about  nineteen  hundred  feet  west  of  the  dock,  with 
a  drawbridge  sufficient  to  allow  a  passage  to  such  vessels  as  had 
before  navigated  the  bay,  the  charter  of  the  railway  containing  a 
provision,  that  if  any  dock  shall  be  "cut  off"  by  the  railway, 
the  company  shall  extend  the  sanie  to  their  road,  it  was  held 
that  this  dock  was  not  "  cut  off,"  within  the  meaning  of  the 
provision.^ 

7.  And  under  the  New  York  statute,  and  the  same  rule  would 
probably  apply  in  other  states,  a  railway  company  which  is  com- 
pelled to  divert  a  stream  of  W9,ter  in  the  construction  of  its  road  is 
bound  not  only  to  restore  it,  as  nearly  as  practicable,  to  its  former 
state,  but  also  to  maintain  it  there,  since  the  mere  restoration  of 
the  stream  may  not  leave  it  as  secure  as  before.^*' 

8.  But  surface  water  produced  by  the  excavation  in  building 
the  railway  is  not  to  be  regarded  in  the  same  light  as  water  con- 
fined to  a  natural  channel,  and  in  such  case  the  company  will  be 

'  Rochester  White  Lead  Co.  v.  The  City  of  Rochester,  8  Comst.  463.  See 
also  Radcliff  v.  Brooklyn,  4  Comst.  195 ;  Mayor  of  New  York  t5.  Furze,  3  Hill, 
612 ;  BaUey  v.  Mayor  of  New  York,  3  Hill,  531. 

«  Steel  V.  Southeastern  Railw.,  16  C.  B.  550;  s.  C.  32  Eng.  L.  &  Eq.  366. 
See  §  129,  post,  for  a  full  statement  of  this  case.  But  there  is  no  liability 
incurred  towards  a  mill-owner  below,  by  cutting  off  springs,  in  sinking  wells 
upon  one's  own  land.  Chasemore  v.  Richards,  2  H.  «&  N.  168 ;  s.  c.  29  Law 
Times,  230. 

®  Tillotson  V.  Hudson  River  Railw.,  15  Barb.  406. 

'»  Colt  V.  Lewiston  Railw.,  36  N.  Y.  214. 
*335 


§80. 


OBSTRUCTION  OP   PRIVATE  WAYB. 


333 


liable  to  an  action  for  turning  it  upon  the  land  of  an  adjoining 
proprietor,  unless  that  becomes  indispensable  in  order  to  maintain 
the  railway,  and  is  done  in  a  manner  to  do  the  least  injury  to  tlie 
land-owner." 

SECTION  XVIII. 


Obstruction  of  Private  Ways. 


1.  Obttnution  of  private  voay  matter  of  fact ; 

need  not  be  illegal. 

2.  Farm  road  on  one's  own  land,  and  private- 

way. 


8.   But  railway  may  lawfully  pass  along  pub- 
lic street. 


§  80.  1.  Where  the  statute  gives  a  right  of  action  against  the 
company,  when  in  the  construction  or  management  of  their  road 
they  shall  obstruct  the  safe  and  convenient  use  of  a  private  way, 
it  was  held  not  necessary  to  the  maintenance  of  the  action  that 
the  railway  should  be  constructed  or  managed  in  an  illegal  and 
improper  mamier.^  But  if  the  railway  be  shown  to  have  been 
constructed  and  managed  in  a  proper  manner,  and  a  passage  over 
the  railway  provided  for  the  private  way,  the  court  cannot  decide, 
as  matter  of  law,  whether  the  safe  and  convenient  use  of  the  way 
is  obstructed  or  not.  That  is  a  question  of  fact  to  be  settled  by 
the  jury  .2 

2.  But  a  farm  road,  which  the  owner  of  the  land  has  constructed 
for  the  convenient  use  of  his  farm,  is  not  to  be  regarded  as  a 
private  way,  within  the  meaning  of  a  railway  act.^  A  private  way, 
witliin  the  construction  of  the  railway  acts,  is  a  way,  or  right  of 
way,  which  one  man  has  in  the  land  of  another.^ 

*The  owner  of  a  private  way,  for  the  purpose  of  recovering 
penalties  for  its  obstruction,  is  the  person  who,  for  the  time  being, 
owns  such  road  in  possession.^ 

3.  But  it  has  been  held,*  that,  where  the  plaintiff's  right  of  way 

"  Curtis  r.  Eastern  Railw.,  14  Allen,  55. 
'  Concord  Railw.  t.  Greely,  3  Foster,  237. 

*  Greenwood  r.  Wilton  Railw.,  3  Foster,  261. 

'  Clark  r.  The  Boston,  Concord,  &  Montreal  Railw.,  4  Foster,  114. 

*  Bliss  r.  Passumpsic  River  Railw.,  Vermont  Sup.  Court,  not  reported. 

*  Mann  v.  Great  Southern  &  Western  Railw.,  9  Ir.  Com.  Law  Rep.  105. 

*  McLaughlan  r.  Charlotte  &  S.  C.  Railw.,  5  Rich.  583.  But  this  decision 
seems  to  rest  upon  the  peculiar  views  of  this  state  upon  that  subject,  that  it  is 
lawful  to  take  private  property  for  public  use  without  compensation,  their  state 

•336 


334 


EMINENT   DOMAIN. 


CH.  XI. 


in  another's  land  was  obstructed  by  the  passage  of  a  railway 
through  the  streets  of  a  town,  in  accordance  with  their  charter,  no 
action  for  damages  could  be  maintained,  and  that  the  party  could 
have  no  redress,  unless  his  case  came  within  the  provisions  of  the 
statute  allowing  compensation. 


SECTION    XIX. 


Statute  remedy  Exclusive. 


Rfmedy  for  land  taken,  exclusively  under 
the  statute. 

But  if  company  do  not  pursue  statute  are 
liable  as  trespassers.  Liaise  for  negli- 
gence also. 

Courts  of  equity  often  interfere  by  injunc- 
tion. 


4.  Important  case  in  the  House  of  Lords. 

5.  Right  at  law  must  be  first  established. 

6.  Where  statute  remedy  fails,  common-law 

remedy  exists. 

7.  The  general  rule  adhered  to  in  America. 

8.  Company  adopting  works  responsible  for 

amount  awarded  for  land  damages. 


§  81.  1.  It  seems  to  be  well  settled,  notwithstanding  some  ex- 
ceptional cases,  that  the  remedy  given  by  statute  to  land-owners  for 
injuries  sustained  by  taking  land  for  railways,  is  exclusive  of  all 
other  remedies,  and  not  merely  cumulative.^ 

constitution  containing  no  provision  upon  the  subject.  But  the  reported  cases 
in  this  state,  from  the  first,  Dun  v.  City  Council  of  Charleston,  .1  Harper,  189 
(1824),  manifest  a  scrupulous  regard  to  the  rights  of  property  owners,  when 
attempted  to  be  interfered  with  for  other  than  strictly  public  purposes.  And 
we  are  not  aware  that  practically,  and  as  a  general  thing,  the  legislature  of  this 
state  have  exercised  the  theoretical  right  which  it  possesses,  of  taking  private 
property  for  public  use  without  compensation.  We  believe  that  is  not  the 
fact. 

'  East  and  West  India  Dock  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  3 
Mac.  &  Gor.  155 ;  s.  c.  3  Eng.  L.  &  Eq.  69  ;  Watkins  v.  Great  Northern  Railw. 
Co.,  16  Q.  B.  961;  s.  c.  6  id.  179;  Kimble  v.  White  Water  Valley  Canal, 
1  Carter,  285;  Knorr  v.  Germantown  Railw.  Co.,  1  Wharton,  256;  Mason  c. 
Kennebec  &  P.  Railw.  Co.,  31  Maine,  215;  s.  c.  1  Am.  Railw.  C.  62;  McCor- 
mack  V.  Terre  Haute  &  Richmond  Railw.,  9  Ind.  283.  But  in  Carr  v.  The 
Georgia  Railw.  &  Banking  Co.,  1  Kelly,  52-i,  it  was  held,  the  statute  remedy 
was  not  exclusive,  but  merely  cumulative.  This  case  professes  to  go  upon  the 
authority  of  Crittenden  v.  Wilson,  5  Cowen,  165,  where  it  was  held,  that  the 
party  whose  lands  had  been  overflowed,  by  means  of  a  dam  erected  by  the 
authority  of  the  legislature,  which  contained  a  provision  for  estimating  damages 
to  land-owners  injured  thereby,  —  might  maintain  an  action  as  at  common  law. 
These  decisions  go  upon  the  principle,  found  in  some  of  the  elementary-  books, 
that  a  statutory  remedy  for  what  was  actionable  at  common  law  is  prima  facie 
to  be  regarded  as  cumulative  merely.  It  seems  now  to  be  the  generally  received 
opinion  upon  this  subject,  that  the  statutory  remedy,  being  more  ample  and 


§  81.  STATUTE   REMEDY   EXCLUSIVE.  335 

*  2.  But  if  the  railway  company  have  assumed  to  appropriate 
the  laud,  iu  violation  of  the  provisions  of  the  statute  to  be  *  complied 
with  on  their  part,  their  acts  are  ordinarily  to  be  regarded  as  tres- 
passes ;  and  wliere  they  have  acquired  the  right  to  the  use  of  the 
land,  but  have  omitted  some  duty  imposed  by  the  statute,  or  where 
they  have  been  guilty  of  negligence,  or  want  of  skill,  in  the  exer- 
cise of  their  legal  rights,  they  make  themselves  liable  to  an  action 
upon  the  case  at  common  law.^ 

more  specific,  is  ordinarily  to  be  regarded  as  exclusive.  But  the  settled  differ- 
ence of  opinion,  among  the  judges  of  the  (^een's  Bench  upon  the  subject,  in 
Kennett  Nav.  Co.  v.  Withington,  18  Q.  B.  531 ;  s,  c.  11  Eng.  L.  &  Eq.  472, 
shows  that  the  matter  is  not  quite  settled  in  that  country. 

The  learned  editors  of  the  American  Railway  Cases  have  an  able  and  very 
satisfactory'  note  upon  this  subject  in  wliich  most  of  the  authorities  bearing  upon 
the  point  are  thoroughly  revised.     1  Am.  Railw.  C.  166,  167,  168, 169,*170,  171. 

In  Aldrich  v.  The  Cheshire  Railw.,  1  Foster,  359 ;  8.  C.  1  Am.  Railw.  C.  206, 
it  is  held,  that  the  statute  remedy  is  exclusive  of  all  others.  So  also  in  Troy  r. 
The  Chesliire  Railw.,  3  Foster,  88,  it  is  held,  that  the  statute  remedy  must  be 
followed,  as  far  as  it  extends,  but  if  it  only  extend  to  part  of  the  injury  occa- 
sioned, the  party  may  have  his  action  at  common  law  for  the  residue. 

But  where  a  railway  company  are  ordered  to  make  and  maintain  a  private 
way,  for  the  benefit  of  a  party,  and  fail  to  comply,  the  appropriate  remedy  is 
the  one  pointed  out  in  the  statute.  White  p.  Boston  &  I'rov.  Railw.,  6  Cush. 
420.  And  where  the  statute  provides  no  specific  remedy  in  such  a  case,  an 
action  on  the  case  will  lie  probably  upon  general  principles. 

But  in  an  English  case,  Ambergate,  Nott.  &  Boston  &  E.  J.  Railw.  v.  Mid- 
land Railw.,  2  El.  &  Bl.  823;  8.  c.  22  Eng.  L.  &  Eq.  289,  where  the  statute 
gives  a  penalty  for  one  company  running  its  engines  upon  the  track  of  another 
company,  without  first  having  obtained  the  requisite  certificate  of  approval  of 
the  engines  by  the  second  company,  it  was  held,  that  this  did  not  take  away  the 
common-law  right  of  seizing  the  engines,  while  upon  their  track,  damage  fea- 
sant. And  having  made  the  distress  upon  the  engine,  while  so  unlawfully  on 
their  track,  and  the  first  company  having  demanded  its  surrender,  after  it  had 
been  removed  off  the  defendant's  line,  with  the  declared  purpose  of  using  it 
again  in  the  same  way ;  that  such  demand  was  illegal,  and  the  defendants  justi- 
fied in  not  acceding  to  it.  See  also,  in  confirmation  of  the  general  proposition 
of  the  text.  New  Albany  &  Salem  Railw.  v.  Connelly,  7  Porter  (Ind.),  32; 
Leviston  v.  Junction  Railw,,  id.  597;  Lebanon  p.  Alcott,  1  N.  H.  339;  Vic- 
tory V.  Fitzpatrick,  8  Ind.  281.  See,  also,  Colcough  v.  The  Nashville  »&  N.  W 
Railw.  Co.,  2  Head,  171;  Brown  p.  Beatty,  34  Miss.  227;  Indiana  Central 
Railw.  Co.  V.  Oakes,  20  Ind.  9. 

*  Watkins  p.  Great  Northern  Railw.  Co.,  12  Q.  B.  961 ;  8.  c.  6  Eng.  L.  & 
Eq.  179;  Dean  v.  Sullivan  Railw.  Co.,  2  Foster,  316;  8.  c.  1  Am.  Railw.  C. 
214;  Mayor  of  Lichfield  p.  Simpson,  8  Ad.  &  Ellis  (n.  8.),  65;  Fumiss  p. 
Hudson  River  Railw.  Co.,  5  Sandf.  S.  C.  551 ;  Turner  p.  Shef.  &  Rotherhara 
Railw.,  10  M.  &  W.  425.     In  this  last  case,  the  injury  complained  of  was,  the 

•  337,  338 


336  EMINENT  DOMAIN.  CH.  XI. 

3.  And  the  courts  of  equity  will  in  many  cases  interfere  by  in- 
junction, where  railway  companies  are  proceeding  to  take  land 
contrary  to  the  provisions  of  the  act  of  parliament.^ 

4.  In  the  House  of  Lords,  in  a  recent  case,*  this  principle  is 
*  very  extensively  discussed,  although  not  arising  in  the  case  of  a 
railway,  or  where  the  land  itself  was  proposed  to  be  taken.  But 
here  the  injury  complained  of  was,  that  the  company's  works,  in 
the  manner  in  which  they  had  been  carried  on,  rendered  the  re- 
spondent's land  useless.  This  was  done  by  means  of  the  gas 
escaping  from  the  company's  works  deadening  the  life  of  vegeta- 
tion, the  respondent  being  a  market  gardener.  The  respondent 
had  brought  an  action  against  the  company  for  the  nuisance, 
which,  by  agreement,  upon  the  suggestion  of  the  court,  had  been 
referred  to  an  arbitrator,  who  had  reported  damages,  as  having 
accrued   in    the    mode    complained  of,  to  a  considerable  extent. 

obstruction  of  ancient  lights  by  the  erection  of  the  company's  station-house, 
done  under  the  act;  and  the  dust,  &c.,  drifted  from  the  station-house  and 
embankment  into  the  plaintiff's  house.  The  plaintiff's  house  not  being  upon  the 
schedule  attached  to  the  bill,  the  company  had  no  right  under  the  act  to  take  it, 
or  injuriously  to  affect  it.  So  that  the  parties  stood  as  at  common  law.  See 
also  Shand  v.  Henderson,  2  Dowl.  P.  C.  519 ;  Davis  v.  London  &  Blackwall 
Railw.,  2  Scott,  N.  R.,  74;  s.  c.  2  Railw.  C.  308. 

^  Stone  V.  Commercial  Railw.,  9  Sim.  621;  s.  c.  1  Railw.  C.  375;  Lord 
Chancellor  in  Manser  v.  N.  &  E.  Railw.  Co.,  2  Railw.  C.  380,  391 ;  Priestly 
V.  Manchester  &  L.  Railw.  Co.,  4  Yo.  &  Col.  Ex.  63;  8.  c.  2  Railw.  C.  134; 
London  &  Birmingham  Railw.  Co.  v.  Grand  Junction  Canal  Co.,  1  Railw.  C. 
224.  In  this  case,  as  well  as  the  next  preceding,  it  is  said  the  company  is  to  be 
the  judge  of  the  most  feasible  mode  of  carrying  forward  its  own  operations,  and 
is  not  liable  to  be  called  to  account  for  the  exercise  of  his  discretion,  so  long  as 
they  act  bona  fide,  and  with  common  prudence. 

But  it  affords  no  just  ground  of  equitable  interference,  that  the  special  tribu- 
nal, provided  by  statute  to  have  exclusive  jurisdiction  of  certaiii  claims,  is  alto- 
gether incompetent  to  decide  such  questions  as  naturally  arise.  If  any  such 
defect  exists,  the  legislature  alone  can  afford  redress.  Barnsley  Canal  Co.  v. 
Twibill,  7  Beav.  19  ;  s.  c.  3  Railw.  C.  471. 

Nor  is  the  land-owner  entitled  to  maintain  a  common-law  action,  because  he 
refused  to  join  in  the  proceedings  under  the  statute,  the  company  having  pro- 
ceeded ex  parte,  and  caused  an  appraisal,  and  deposited  the  sum  awarded  for 
compensation.  Hueston  ».  Eaton  &  H.  Railw.,  4  Ohio  N.  S.  685.  See  also  The 
Western  Maryland  Railw.  Co.  v.  Owings,  15  Md.  199 ;  Sturtevant  v.  Milw. 
Wat.  &  B.  Railw.  Co.,  11  Wise.  61 ;  Powers  v.  Bears,  12  Wise.  213;  Davis  v. 
La  Crosse  &  Milw.  Railw.  Co.,  id.  16 ;  Burns  v.  Milw.  &  Miss.  Railw.  Co., 
Wise.  450. 

*  Imperial  Gas  Light  &  Coke  Co.  v.  Broadbent,  7  Ho.  Lds.  606 ;  s.  c.  5  Jur. 
N.  S.  1319. 

*339 


§  81.  STATUTE  REMEDY  EXCLUSIVE.  837 

The  company  were  now  proceeding  to  make  a  very  extensive  ad- 
dition to  their  works,  when  the  respondent  obtained  an  injunction 
against  them,  which,  upon  final  hearing  before  the  chancellor, 
assisted  by  the  common-law  judges,  had  been  made  perpetual,^  and 
the  question  was  then  appealed  by  the  company  into  the  House  of 
Lords. 

5.  It  was  here  held,  affirming  the  decision  below,  that  in  such 
case  the  plaintiff  in  equity  cannot  claim  a  perpetual  injunction, 
until  his  right  is  first  established  at  law.  But  this  was  sufficiently 
done  in  the  present  case,  by  the  award  of  the  arbitrator.  But  after 
the  right  is  once  established  at  law,  it  is  the  province  of  the  equity 
judge  to  determine  how  far  the  cause  of  complaint  may  have  been 
removed  by  any  subsequent  alteration  of  the  works;  and  this 
question  will  not  be  referred  to  a  trial  at  law. 

6.  It  was  also  held  here  that  the  respondent  had  no  remedy 
under  the  statute,  and  consequently,  although  such  statutory 
remedy  to  its  extent  was  necessarily  exclusive  of  all  others,  yet 
where  the  wrong  done  is  not  authorized  by  these  powers,  the  com- 
mon-law right  of  action  still  remained.^ 

7.  The  general  principle  that  the  statute  remedy,  as  far  as  it 
extends,  is  exclusive,  seems  to  be  universally  adhered  to  in  the 
American  courts,  with  slight  modifications,  some  of  which  are, 
•  and  some  are  not,  perhaps,  entirely  consistent  with  the  mainte- 
nance of  the  general  rule." 

8.  It  was  held  in  one  case,  where  the  land  damages  had  been 
assessed  under  the  statute,  and  judgment  rendered  for  the  amount 
against  the  company,  that  a  subsequent  company,  formed  by  the 
mortgagees  of  the  first  company,  were  responsible  for  the  amount 
of  such  judgment,  if  they  continued  to  operate  the  road  and  use 
the  right  of  way  for  which  the  judgment  was  rendered.^  But  this 
seems  a  considerable  stretch  of  construction,  although  eminently 
just  and  reasonable. 

»  8.  c.  before  V.  C.  Wood,  2  Jur.  N.  S.  1132 ;  before  the  Chancellor,  8  id. 
221. 

•  See  the  following  cases  cited  in  argument :  Hole  v.  Barlow,  4  C.  B.  (N.  S.), 
334;  Attorney-General  v.  The  Sheffield  Gas  Consumers'  Co.,  3  De  G.  M.  &  G. 
304;  Same  r.  Nichol,  16  Vesey,  388;  Wynstanley  r.  Lee,  2  Swanst.  333; 
Haines  r.  Taylor,  10  Beavan,  75. 

'  Pettibone  r.  La  Crosse  &  Milw.  Railw.  Co.,  14  Wis.  443 ;  Vilas  v.  Milw.  & 
Miss.  Railw.  Co.,  15  id.  233. 

•  Pfeifer  p.  Sheboygan  &  Fond  du  Lac  Railw.  Co.,  18  Wis.  155. 

22  •840 


338  EMINENT  DOMAIN.  CH.  XI. 

SECTION   XX. 

Lands  injuriously  affected. 


1.  Obstruction  of  way,  loss  of  custom. 

2.  Equity  will  not  enjoin  legal  right. 

3.  Liable  for  building  railway,  so  as  to  cut 

off  wharf. 

4.  Not  liable  for  crossing  highway  on  level. 

5.  English  statute  only  includes  damages,  by 

construction. 

6.  Equity  will  not  enjoin  a  doubtful  claim. 

7.  Damages  unforeseen,  at  the  time  of  the 

appraisal,  may  be  recovei-ed,  in  Eng- 
land. 

8.  Injuries  to  ferry,  and  towing  path,  com- 


9,  10.   liemote  injuries  not  within  the  statute. 

11.  Damages  compensated,  under  statute  of 

Massachusetts. 

12.  Damages  not  compen8(ited,  as  being  too 

remote. 

13.  For  negligence  in  construction,  remedy  at 

common  law. 

14.  Or  neglect  to  repair. 

15.  Recovery  under  the  statute,  Sfc. 

16.  Possession  by  railway,  notice  of  extent  of 

title. 

17.  Railways  have  right  to  exclusive  posses- 


pensated.  ,  |  sion  of  roadway. 

§  82.  1.  The  right  of  a  party  to  claim  consequential  damages, 
where  his  land  was  not  taken,  but  only  injuriously  affected,  was 
very  thoroughly  discussed  by  Lord  Truro,  Chancellor,  in  a  late 
case,^  where  the  defendant,  a  furrier,  claimed  damage,  in  conse- 
quence of  the  dust  and  dirt,  occasioned  by  the  company,  having 
injured  his  goods,  and  that  his  customers  had  been  compelled,  by 
the  obstruction  caused  by  the  company's  works,  to  quit  the  *  side 
of  the  road  upon  which  the  defendant's  shop  was  situated, 
before  they  arrived  at  that  point,  and  cross  the  street  to  get 
along,  by  reason  whereof  he  had  lost  custom.  The  defendant 
also  claimed  that  the  company  had  obstructed  a  passage  to  his 
buildings,  by  which  he  had  an  entrance  to  the  back  part  of  his 
premises.  ' 

The  Lord  Chancellor  considered  that  if  the  party  had  any  claim 
for  compensation  it  was  to  be  procured  under  the  statute  and 
estimated  by  the  sheriff's  jury,  and  dissolved  the  injunction.  It 
seems  now  to  be  settled  by  the  decision  of  the  House  of  Lords 
(Rickett  V.  Metropolitan  Railway) ,  that  unless  the  injury  is  of  such 
a  nature  as  to  be  actionable  aside  from  the  statute,  it  will  not  en- 
title the  party  to  compensation  under  the  statute,  and  that  inter- 
ruption of  business  therefore,  by  making  access  more  inconvenient, 
will  not  entitle  the  party  to  such  compensation.^     But  where  the 

>  East  &  W.  I.  Docks  &  Birmingham  Junction  Railw.  Co.  v.  Gattke,  8  Mac. 
&  Gor.  165 ;  s.  c.  3  Eng.  L.  &  Eq.  69. 
»  Law  Rep.  2  H.  L.  176. 
*  341 


§  82.  LANDS  INJURIOUSLY   AFFECTED.  339 

works  of  a  railway  diminish  the  light  of  premises,  although  the 
pecuniary  value  of  plaintiff's  interest  is  not  diminished,  property 
in  the  neighborhood  generally  having  advanced  in  price,  the  owner 
is  entitled  to  compensation.^  Where  the  value  of  a  house  is 
lessened  by  railway  works  producing  noise,  smoke,  and  vibration, 
the  party  is  entitled  to  compensation  under  the  statute.* 

But  where  the  railway  company  lowered  a  highway  several  feet, 
thereby  greatly  obstructing  access  to  plaintiff's  dwelling,  and 
obliging  him  to  make  use  of  a  ladder  for  that  purpose,  it  was  held 
that  no  claim  could  be  maintained  under  that  clause  in  the  statute 
for  injuriously  affecting  land,  the  injury  complained  of  being  one 
of  a  permanent  nature,  and  therefore  the  subject  of  compensation 
under  the  general  provision  for  land  damages.^  But  where  the 
works  of  a  railway  intercepted  water  which  would  have  percolated 
through  the  strata  of  the  earth  into  plaintiff's  well,  and  also 
drained  off  water  which  had  reached  the  well  by  such  percolation :  ® 
It  was  held  the  land-owner  had  no  remedy  either  under  the  statute 
or  at  common  law. 

2.  This  case  was  an  application,  by  the  company,  for  an  injunc- 
tion to  restrain  the  party  from  proceeding  under  the  statute,  and 
the  court  held,  that  as  the  party  had  a  clear  legal  right,  under  the 
act  of  parliament,  they  could  not  be  deprived  of  pursuing  it  in  the 

'  Eagle  r.  Charing  Cross  Railw.,  Law  Rep.  2  C.  P.  638.  A.  owned  a  house 
on  a  highway ;  a  railway  company,  under  powers  given  them  by  statute,  made 
an  embankment  on  the  highway  opposite  the  house,  thereby  narrowing  the  road 
from  fifty  to  thirty-three  feet,  thus  materially  diminishing  the  value  of  the  house 
for  sale  or  letting,  and  obstructing  the  access  of  light  and  air.  Hdd,  1.  That  A. 
had  sustained  particular  damage  from  the  works  ;  2.  That  the  damage  would  have 
been  actionable  if  not  authorized  by  statute ;  3.  That  the  injury  done  was  an 
injury  to  A.'s  estate,  and  not  a  mere  injury  to  A.  personally  or  to  his  trade ;  and 
that,  these  three  things  concurring,  A.  was  entitled  to  compensation  under  stat. 
8  Vict.  cc.  18,  20.     Beckett  r.  Midland  Railw.,  Law  Rep.  3  C.  P.  82. 

*  Brand  r.  Hammersmith  &  City  Railw.,  L.  R.,  2  Q.  B.  223. 

'  Moore  v.  Great  Southern  &  Western  Railw.  Co.,  10  Ir.  Com.  Law  Rep. 
46,  in  Exch.  Chamber  S.  P.  Tuohey  r.  Same,  id.  98.  But  the  English  courts 
seem  to  consider  that  compensation  in  such  a  case  may  be  given  under  the  pro- 
vision for  damages  where  land  is  injuriously  affected.  Chamberlain  r.  West 
End  of  London  &  C.  Railw.,  2  B.  &  S.  617  ;  s.  c.  3  B.  &  S.  768 ;  8  Jur.  N.  S.  935. 

•  New  River  Co.  p.  Johnson,  2  Ellis  &  Ellis,  435 ;  8.  c.  6  Jur.  N.  S.  374,  Q.  B. 
This  question  is  a  good  deal  discussed  in  a  later  case,  Reg.  ».  Met.  Board  of 
Works,  3  B.  &  S.  710,  where  it  was  held  that  the  railway  company  were  not 
responsible  for  underground  currents  of  water  intercepted  by  their  works,  either 
at  common  law  or  under  the  statute. 


340  EMINENT   DOMAIN.  CH.  XI. 

mode  pointed  out,  and  fully  affirmed  the  views  of  Lord  Denmany 
Ch.  J.,  in  Regina  v.  Eastern  Counties  Railway  Company,^  where 
the  damage  claimed  was  by  lowering  a  road  *  upon  which  the  land 
abutted,  so  as  to  impede  the  entrance  to  the  land,  and  compel  the 
owner  to  build  new  fences. 

3.  The  construction  of  a  railway  across  flats,  in  front  of  plain- 
tiff's wharf,  gives  him  a  right  to  damage  under  the  statute  of 
Massachusetts,  although  the  wharf  itself  remained  uninjured.^ 
But  the  charter  of  a  railway  company  having  authorized  them  to 
make  certain  specified  erections  between  the  channels  of  two  rivers, 
and  such  erections  having  so  changed  the  currents  of  the  rivers  as 
to  render  more  sea-wall  necessary  to  secure  certain  wharves  and 
flats  in  the  vicinity,  it  was  held  that  the  damage  thereby  occasioned 
was  damnum  absque  injuria.^ 

4.  One  cannot  claim  damage  of  a  railway  company,  by  reason 
of  their  track  crossing  a  public  highway,  near  his  dwelling,  upon  a 
level,  the  highway  being  the  principal  approach  to  his  grounds.^*^ 

5.  In  a  recent  English  case,^^  it  is  held  that  the  English  statute, 
giving  compensation,  where  lands  are  injuriously  affected,  was 
intended  to  include  only  such  damages  as  were  caused  by  the 
erection  of  the  company's  works,  and  not  such  as  might  in 
future  be  caused  by  the  use  of  the  works,  this  being  the  case  of 
Gas   Works,  and   the   68th   section   of  the  Lands  Clauses  Acts 

»  2  Ad.  &  Ellis  (n.  s.),  347.  See  post,  §  99.  In  this  case  the  court  held 
that  the  injuries  complained  of  clearly  came  within  the  act,  and  Lord  Denman, 
in  closing  his  opinion,  makes  a  very  significant  reply  to  a  class  of  arguments, 
not  uncommon  upon  all  subjects.  "  Before  we  conclude,  we  shall  briefly  advert 
to  an  argument  much  pressed  upon  us ;  that  if  we  make  this  rule  absolute,  any 
injury  to  land,  at  any  distance  from  the  line  of  railway,  may  become  the  subject 
of  compensation.  If  extreme  cases  should  arise,  we  shall  know  how  to  deal  with 
them ;  but  in  the  present  instance,  the  alleged  injury  is  to  land  adjoining  a  road, 
which  has  been  '  lowered '  under  the  provisions  of  the  act,  and  which  is  therefore 
land  injuriously  affected,  by  an  act  expressly  within  the  powers  conferred  by  the 
company." 

»  Ashby  V.  The  Eastern  Railw.  Co.,  5  Met.  368;  8.  c.  1  Am.  Railw.  C.  356. 
And  in  Bell  ».  The  Hull  &  Selby  Railw.,- 2  Railw.  C.  279,  a  similar  decision  is 
made  under  the  English  statute. 

"  Fitchburg  Railw.  v.  Boston  &  Maine  Railw.  3  Cush.  68  ;  s.  c.  1  Am.  Railw. 
C.  508 ;  Ante,  §  75. 

»"  Caledonian  Railw.  ».  Ogilvy,  2  McQu.  Ho.  Lds.  229 ;  s.  c.  29  Eng.  L.  & 
Eq.  22. 

"  Law  Times,  February,  1857,  p.  329,  not  yet  reported  in  this  country. 
•342 


§  82.  LANDS  INJURIOUSLY  AFFECTED.  341 

being  made  a  part  of  the  company's  special  act.  But  this  cer- 
tainly could  not  extend  to  the  ordinary  use  of  a  railway,  which 
is  the  only  or  the  principal  mode  of  injuriously  affecting  lands  not 
taken,  and  which  could  be  as  strictly  estimated,  at  the  time  of  the 
company's  works  being  erected,  as  from  time  to  time  thereafter. 

6.  In  one  case,^^  where  the  lessee  of  an  inn  and  premises, 
*  situated  near  a  tunnel  on  the  company's  road,  claimed  damages, 
because  the  vibration  caused  by  the  trains  prevented  his  keeping 
his  beer  in  the  cellar  in  a  fit  state  for  his  customers,  and  the  value 
of  the  house  was  thereby  lessened,  being  rendered  unfit  for  a 
public-house ;  and  the  plaintiffs  moved  for  an  injunction  to  re- 
strain the  defendant  from  proceeding  to  assess  damages  under 
the  statute ;  the  Lord  Chancellor  denied  the  motion,  upon  the 
ground  that  the  remedy  at  law  was  altogether  adequate.  But  his 
lordship  intimated  a  very  decided  opinion,  that  no  such  damages 
could  be  recovered.  He  says,  "  Whetber  an  action  will  lie  on 
behalf  of  a  man  who  sustains  a  private  injury,  by  the  exercise  of 
parliamentary  powers,  done,  judiciously  and  cautiously,  is  not  an 
easy  question,  or  rather  it  is  not  easy  to  come  to  the  conclusion 
that  an  action  will  lie.  I  entertain  a  decided  opinion,  (probably 
however  erroneous,)  that  no  such  action  will  lie."  ^^ 

7.  And  where  the  plaintiff's  damages  for  land  taken  by  the 
company,  and  by  severance  and  otherwise,  were  determined  by 
an  arbitrator,"  but  from  the  road  being  built  across  certain  flats, 
with  insufficient  openings,  the  waters  became  dammed  up  and 
injured  the  plaintiff's  remaining  lands,  it  was  held,  he  was  entitled 
to  recover  "  as  for  an  unforeseen  injury,  arising  from  the  manner  in 
which  the  railtoay  was  constructed^     But  it  is  here  said,  "  The 

'*  The  London  &  N.  W.  Railw.  Co.  r.  Bradley,  8  Mac.  &  Gor.  866 ;  s.  c.  6 
Railw.  C.  551. 

"  Hatch  V.  Vermont  Central  Railw.  Co.,  25  Vt.  49 ;  s.  c.  28  id.  142. 

"  Lawrence  v.  Great  N.  Railw.  Co.,  16  Q.  B.  643;  s.  c.  6  Railw.  C.  656; 
8.  c.  4  Eng.  L.  &  Eq.  265 ;  ante,  §  79,  n.  6 ;  §  74,  n.  7 ;  L.  &  Y.  Railw.  c. 
Evans,  15  Beav.  322 ;  s.  c.  19  Eng.  L.  &  Eq.  295.  Under  most  of  the  American 
statutes,  the  damages,  as  well  prospective  as  present,  must  be  assessed  at  once, 
and  no  recovery  can  be  had  for  unforeseen  injury,  more  than  in  any  case  of  a 
recover)'  of  damages  for  a  tort.  But  in  the  case  of  Lancashire  &  Y.  Railw.  c. 
Evans,  it  is  obvious,  from  the  elaborate  review  of  the  case  by  the  Master  of  the 
Rolls,  that  the  English  courts  now  regard  the  land-owner  as  entitled  to  make 
new  claims,  from  time  to  time,  as  they  occur,  for  any  injurious  consequence  of 
the  construction  of  the  works.  For  any  unlawful  act,  in  the  construction  or  tue 
of  the  works,  an  action  at  common  law  is  the  proper  remedy. 

•843 


342  EMINENT  DOMAIN.  CH.  XI. 

company  might,  by  erecting  their  works  with  proper  caution,  have 
avoided  the  injury."  It  seems  this  is  the  only  ground  of  an 
action. 

8.  In  a  doubtful  case  the  court  issued  an  alternative  mandamus 
and  required  a  return  of  the  facts.^  So,  too,  a  party  whose  *  ferry 
has  been  materially  lessened  in  value,  by  obstructing  access  to  it, 
may  recover  damages  of  the  company  under  the  statujte.^®  So,  too, 
if  a  towing-path  be  obstructed,  or  the  navigation  diverted  from  it, 
the  owner  under  a  similar  statute  may  have  compensation. i'^ 
So,  too,  an  occasional  flooding  of  lands,  caused  by  a  proper  exe- 
cution of  parliamentary  powers,  is  within  the  remedy  given  by 
statute.^^ 

9.  Some  questions  under  this  head  have  arisen,  in  regard  to 
mines  and  minerals,  not  of  sufficient  importance  to  be  stated  in 
detail.^^  Where  the  damage  resulted  from  the  company  turning  a 
brook,  the  court  ordered  a  mandamus.^^  But  brewers,  accustomed 
to  take  water  from  a  public  river,  are  not  entitled  to  receive  com- 
pensation when  the  waters  were  deteriorated  by  the  works  of  a 
dock  company .21 

10.  It  was  held  that  a  tithe-owner  is  not  entitled  to  compensa- 

»5  Queen  v.  The  North  Union  RaUw.  Co.,  1  Railw.  C.  729. 

"  /;»  re  Cooling,  19  Law  J.  Q.  B.  25 ;  s.  c.  nom.  Cooling  r.  Great  Northern 
Railw.,  15  Q.  B.  486;  Hodges  on  Railways,  277.  It  is  said  here  that  a  ferrj'  is 
different  from  a  public-house,  whose  custom  is  said  to  be  injured  by  obstructing 
the  travel  and  access  to  the  house,  by  cutting  through  thoroughfares  leading  to 
it,  which,  it  has  been  held,  is  no  ground  of  claiming  damage  under  a  similar 
statute.  The  King  v.  The  London  Dock  Co.,  6  Ad.  &  El.  163.  But  this  case 
is  considered  as  overruled  by  Reg.  v.  The  Eastern  Counties  Railw.  Co.,  2  Q.  B. 
347;  Chamberlain  r.  East  End  of  London  &  Crys.  Pal.  Railw.  Co.,  2  B.  &  S. 
617 ;  s.  c.  3  B.  &  S.  768 ;  8  Jur.  N.  S.  935. 

"  The  King  v.  Commis.  of  Thames  &  Isis,  5  Ad.  &  Ell.  804. 

"  Ware  v.  Regent's  Canal  Co.,  3  De  G.  &  Jones,  212. 

"  Fenton  v.  Trent  &  Mercy  Nav.  Co.,  9  M.  &  W.  203 ;  Cromford  Canal  Co. 
r.  Cutts,  5  Railw.  C.  442 ;  The  King  v.  Leeds  &  Selby  Railw.  Co.,  3  Ad.  & 
Ell.  683. 

»  Reg.  V.  North  Midland  Railw.  Co.,  11  Ad.  &  El.  955 ;  s.  c.  2  Railw.  C.  1. 

*'  The  King  t.  Bristol  Dock  Co.,  12  East,  429.  But  where  mines  below  the 
company's  works  are  injured  in  consequence  of  the  negligent  or  imperfect  mode  of 
constnicting  or  maintaining  the  company's  structures  and  cuttings,  the  person  so 
injured  may  maintain  a  common-law  action  against  the  company.  Bagnall  v. 
London  &  N.  W.  Railw.,  7  H.  &  N.  423.  Affirmed  in.E.xchequer  Chamber,  31 
Law  J.  480.  See  abo  Reg.  r.  Fisher,  3  B  &  S.  191 ;  s.  c.  9  Jur.  N.  S.  571 ; 
Elliot  V.  Northeastern  Railw.  Co.,  9  Jur.  N.  S.  555 ;  s.  c.  10  Ho.  Lords  Cas.  333. 
*3i4 


§  82.  LANDS  INJURIOUSLY  AFFECTED.  343 

tiou  unless  the  act  contain  an  indemnity  in  his  favor.^  The  in- 
terest of  a  titlie-owner  is  too  remote  and  incidental  to  be  the  sub- 
ject of  general  indemnity.  It  often  forms  the  basis  of  special 
statutory  provisions  for  indemnity. 

*11.  In  a  well-considered  case,  the  rule  in  regard  to  what 
damage  is  to  be  included  under  the  terms  "  lands  injuriously 
affected,"  or  equivalent  terms,  is  thus  laid  down :  "  All  direct 
damage  to  real  estate  by  passing  over  it,  or  part  of  it,  or  which 
affects  the  estate  directly,  although  it  does  not  pass  over  it,  as  by 
a  deep  cut  or  high  embankment,  so  near  lands  or  buildings  as  to 
prevent  or  diminish  the  use  of  them,  by  endangering  the  fall  of 
buildings,  the  caving  of  earth,  the  draining  of  wells,  the  diversion 
of  water-courses,"  by  the  proper  erection  and  maintenance  of  the 
company's  works.  "  Also,  as  being  of  like  character,  blasting  a 
ledge  of  rocks  so  near  houses  or  buildings  as  to  cause  damage ; 
running  a  track  so  near  as  to  cause  imminent  and  appreciable 
danger  by  fire ;  obliterating  or  obstructing  private  ways  leading  to 
houses  or  buildings," — all  these  and  some  others,  doubtless,  are 
included. 

12.  "  But  that  no  damage  can  be  assessed  for  losses  arising 
directly  or  indirectly  from  the  diversion  of  travel,  the  loss  of  cus- 
tom to  turnpikes,  canals,  bridges,  taverns,  coach  companies,  and 
the  like ;  nor  for  the  inconveniences  which  the  community  may 
suffer  in  common,  from  a  somewhat  less  convenient  and  beneficial 
use  of  public  and  private  ways,  from  the  rapid  and  dangerous 
crossings  of  the  public  highways,  arising  from  the  usual  and  ordi- 
nary action  of  railroads,  and  railroad  trains,  and  their  natural 
incidents."  ^ 

»  Rex  r.  The  Commissioners  of  Nene  Outfall,  9  B.  &  C.  875 ;  London  & 
Blackwall  Railw.  Co.  v.  Letts,  3  H.  L.  Cases,  470 ;  8.  c.  8  Eng.  L.  &  Eq.  1 ; 
Hodges  on  Railways,  289,  n.  (m). 

"  Proprietors  of  Locks  &  Canals  v.  Nashua  &  Lowell  Railw.,  10  Cush.  386. 
Shaw,  Ch.  J.  (391,  392).  Nor  is  the  party,  whose  lands  lie  near  a  railway  line, 
entitled  to  compensation,  for  being  injuriously  affected,  by  persons  in  the  trains 
overlooking  the  grounds,  thus  rendering  them  less  comfortable  and  secluded,  for 
the  walks  of  the  family  and  visitors.  Nor  can  the  party  claim  compensation  for 
vibration  of  the  ground  caused  by  the  use  of  the  road,  the  statute  only  extending 
to  damages  caused  by  the  construction  of  the  works.  Reg.  v.  Southeastern 
Railw.,  in  re  Penny,  7  Ellis  &  lilack.  660,  ante,  pi.  5.  But  actual  injury  dur- 
ing the  construction  of  a  railway,  by  vibration  caused  by  the  ballast  trains,  ia 
to  be  compensated ;  but  by  Campbell,  Ch.  J.,  it  is  said  such  vibration  caused  by 

•346 


344  EMINENT  DOMAIN.  CH.   XI. 

13.  It  is  held  also  in  this  case,  that  no  damages  can  be  assessed 
under  the  statute,  for  cutting  through  a  watercourse  in  making 
an  embankment  without  making  a  culvert,  whereby  the  water  is 
made  to  flow  back  and  injure  the  plaintiff's  land,  at  a  distance 
*  from  the  railway,  no  part  of  which  is  taken,  the  remedy  being  by 
action  at  common  law.^ 

14.  And  where  the  company,  by  consent  of  the  land-owner, 
enters  upon  the  land  and  makes  the  requisite  erections,  which  are 
subsequently  conveyed  to  it  with  the  land  by  the  land-owners, 
it  was  held  such  grantor  is  not  estopped  from  claiming  damages 
resulting  from  want  of  proper  care  and  skill  in  constructing  the 
works,  or  from  neglect  to  keep  them  in  repair.^ 

15.  The  rule  of  the  English  courts  that  damages  can  only  be 
recovered  for  injuriously  affecting  land,  where  but  for  the  statute 
the  act  complained  of  would  be  just  ground  of  action  at  common 
law,  does  not  apply  where  part  of  the  land  is  taken  and  damages 
are  sought,  not  only  for  the  part  taken,  but  for  the  rest  of  the  land 
being  injuriously  affected,  either  by  severance  or  otherwise.^  And 
it  was  here  held  that  the  owner  of  a  mill  was  entitled  to  have 
damages  assessed  to  him  for  the  increased  exposure  of  the  same 
to  fire  by  the  passage  of  the  company's  trains.  But  loss  of  ti-ade 
caused  by  the  operations  of  the  company  during  the  constniction 
of  their  works  is  not  damages  for  which  the  party  is  entitled  to 
compensation.*  But  a  person  may  claim  damages  on  the  ground 
of  being  injuriously  affected  on  account  of  the  obstruction  or 
diversion  of  a  public  way  by  the  construction  of  the  works  of  a 
railway.^ 

16.  The  owners  of  land  adjoining  a  railway  track  are  affected 
with  presumptive  notice  of  the  rights  of  the  company  from  long 

running  trains  afler  the  road  is  completed  will  merit  a  different  consideration, 
lb.     See  also  Croft  r.  London  &  X.  W.  Railw.  Co.,  3  B.  &  S.  436. 

•*  Morris  Canal  &  Banking  Company  r.  Ryerson,  3  Dutcher,  457 ;  "Water- 
man r.  Conn.  &  Pass.  Riv.  Railw.,  30  Vt.  610;  Lafayette  Plank  Road  Co.  v. 
New  Albany,  &c.  Railw.,  13  Ind.  90. 

*»  S.  T.  &  A.  Railw.  Co.,  in  re,  10  Jur.  N.  S.  614. 

••  Senior  v.  Met.  Railw.  Co.  2  EL  &  C.  258,  Cameron  r.  Charing-Cross  Railw. 
Co.,  16  C.  B.  N.  S.  430 ;  overruled  in  Exch.  Chamber,  Ricket  c.  Metropolitan 
Railw.  Co.,  5  B.  &  S.  119;  s.  c.  13  W.  R.  455,  where  the  proposition  of  the 
text  is  established. 

"  Wood  F.  Stourbridge  Railw.  Co.,  16  C.  B.  N.  S.  222.     See  also  Boothbj  v. 
Androscoggin  &  K.  Railw.  Co.,  51  Me.  318. 
•346 


§83. 


DIFFERENT  ESTATES  PROTECTED. 


845 


use,  the  same  as  in  regard  to  other  owners  in  possession.*  And 
equity  will  enjoin  an  adjoining  owner  to  a  railway  track  against 
making  erections  which  will  interfere  with  the  company  repairing 
its  track.® 

*  17.  It  seems  scarcely  needful  to  repeat  what  has  been  so  often 
declared  by  the  courts,  that  railways  have  the  exclusive  right  to 
possession  of  their  roadway,  and  to  exclude  all  intrusions  thereon, 
whether  from  persons  or  structures.** 

SECTION   XXI. 


Different  Estates  Protected. 


1.  Tenant'*  g^od-wiU  and  chance  of  reneuxd 

protected. 

2.  Tenants  entitled  to  compensation  for  change- 

of  location, 

3.  Church  property  in  England,  how  esti- 

mated. 

4.  Tenant  not  entitled  to  sue,  as  owner  of  pri- 

vate way. 

5.  Heir  should  sue  for  compensation. 

6.  Lessor  and  lessee  both  entitled  to  compensa- 

tion. 


7.  Right  of  way,  from  necessity,  protected. 

8.  Hill-owner  entitled  to  action  for  obstruct- 

ing water. 

9.  Occupier  of  land  entitled  to  compensa- 

tion. 

10.  Tenant,  without  power  of  atiertation, 
forfeits  his  estate,  by  license  to  com- 
pany. 

11.  Damages   not    transferable  by  deed    of 

land,  ajler  they  accrue. 


§  83.  1.  The  English  statute  provides  for  the  protection  of  the 
interests  of  lessees  in  certain  cases. ^  And  lessees  from  year  to 
year  have  recovered,  for  the  good-will  of  the  premises,  which  would 
have  been  valuable  as  between  the  tenant  and  a  purchaser,  al- 
though it  was  not  a  legal  interest  as  against  the  landlord.*  But 
not  when  the  tenancy  was  from  year  to  year,  determinable  at  three 
months'  notice,  with  a  stipulation  against  underletting  without 
leave.*  So,  too,  an  under-tenant  is  entitled  to  compensation  for 
good-will.3  But  in  a  lease  for  fourteen  years,  with  covenant  to 
yield  up  the  premises  at  the  end  of  the  term,  with  all  fixtures  and 
improvements,  where  the  company  suffered  the  lease  to  expire  and 

»  Macon  &  Western  Railw.  Co.  v.  McConnell,  27  Ga.  4Sl. 

"  Cunningham  v.  Rome  Railw.  Co.,  27  Ga.  499. 

"  Railw.  Co.  V.  Hummell,  44  Penn.  St.  375 ;  Harvey  r.  Lackawanna  &  B. 
Railw.  Co.,  47  id.  428. 

'  8  &  9  Vict.  c.  18,  §§  119  to  122,  and  8  &  9  Vict.  c.  20,  §  43. 

•  Ex  parte  Farlow,  2  B.  &  Ad.  341 ;  The  Matter  of  Palmer  r.  Hungerford 
Market,  9  Ad.  &  EUis,  463. 

'  Rex  c.  The  Hungerford  Alarket,  4  B.  «fe  Ad.  692. 

•347 


346  EMINENT   DOMAIN.  CH.  XI. 

then  turned  out  the  tenant,  held  that  he  was  entitled  to  compensa- 
tion for  good-will  and  the  chance  of  *  beneficial  renewal,  but  not 
for  improvements,  but  nevertheless  these  might  be  considered  by 
the  jury  in  estimating  the  chance  of  beneficial  renewal.^ 

2.  The  loss  which  a  brewer  sustained  by  having  to  give  up  his 
business  till  he  could  procure  other. premises,  suitable  for  carrying 
it  on,  was  held  a  proper  subject  of  compensation  under  a  similar 
statute.^  "Where  the  act  required  tenants  from  year  to  year  to  give 
up  premises  to  the  company,  upon  six  months'  notice  to  quit,  with- 
out reference  to  the  time  when  their  term  began,  but  allowed  them 
compensation,  if  required  to  leave  before  their  term  expired,  it  was 
held,  that  when  the  six  months'  notice  required  the  tenant  to  leave 
at  the  end  of  his  term,  he  was  not  entitled  to  compensation.^  But 
where  a  tenant  gives  up  premises  under  a  six  months'  notice  from 
a  railway  company,  when  he  is  entitled  to  compensation,  without 
demanding  it  of  the  company,  h6  is  still  bound  to  pay  full  rent  to 
his  landlord.'^ 

3.  Church  property  in  England  is  estimated  with  reference  to 
the  cost  of  a  new  site  and  similar  erections,  to  be  fixed  by  agree- 
ment between  the  company  and  the  diocesan  and  archbishop  of  the 
province.  But  after  this  appropriation  of  the  site  of  a  church  to 
secular  purposes,  the  rector  is  entitled  to  have  his  interest  in  the 
premises  connected  therewith  estinaated  at  its  value  for  secular  uses.^ 

4.  Where  the  charter  of  a  company  imposed  a  penalty  upon  them 
for  any  obstruction  or  interruption  of  a  road,  and  in  the  case  of  a 
private  road  gave  the  right  to  recover  the  penalty  to  the  owner  of 
the  road,  it  was  held,  that  the  tenant  of  the  farm  over  which  tlie 
road  passed  could  not  sue  for  the  penalty.^ 

*  Rex  V.  The  Hungerford  Market,  4  B.  &  Ad.  592.  But  the  case  of  Rex  v. 
Liv.  &  Manchester  Railw.,  4  Ad.  &  Ellis,  650,  seems  to  treat  a  similar  estate  as 
absolutely  gone,  at  the  end  of  the  term,  and  the  company  bound  to  make  no 
compensation.  But  where  the  company  stipulated  with  a  tenant,  having  a  doubt- 
ful right  of  renewal,  to  compensate  him  for  the  same  on  his  establishing  the  right, 
and  subsequently  became  themselves  the  owner  of  the  reversion,  it  was  held  the 
tenant  might  maintain  a  bill  in  equity  for  the  declaration  of  his  rights  as  to 
renewal  and  compensation  therefor.     Bogg  v.  Midland  Railw.,  L.  R.  4  Eq.  310. 

»  Jubb  V.  HuU  Dock  Co.,  9  Ad.  &  Ellis  (n.  s.),  Q.  B.  443. 

*  The  Queen  v.  London  &  Southampton  Railw.  Co.,  10  Ad.  &  El.  3 ;  s.  c.  1 
RaUw.  C.  717. 

7  Wainwright  v.  Ramsdem,  6  M.  &  W.  602 ;  s.  c.  1 'Railw.  C.  714. 

8  Hilcoat  r.  The  Archbishops  of  Canterbury  &  York,  10  C.  B.  327. 
'  Collinson  v.  Newcastle  &  Darlington  Railw.,  1  Car.  &  Est.  646. 

*848 


§  83.  DIFFERENT   ESTATES  PROTECTED.  347 

5.  Where  land  of  a  deceased  person  is  taken  for  a  railway,  *  the 
heir  and  not  the  administrator  is  entitled  to  the  damages  for  such 
taking,  and  to  prosecute  for  the  recovery  thereof,  although  the 
administrator  had  previously  represented  tl»^  estate  insolvent,  and 
afterwards  obtained  a  license  to  sell  the  real  estate  for  the  payment 
of  debts.io 

6.  And  a  tenant,  whose  lease  began  before,  and  who  was  in 
possession  at  the  time  an  injury  was  done,  is  entitled  to  recover 
damages  for  an  injury  sustained  by  him,  in  building  a  turn- 
pike road."  But  the  lessor  and  lessee  are  each  entitled  to 
recover  compensation  for  the  damage  sustained  by  them  respec- 
tively. ^^ 

7.  And  where  the  plaintiff  had  no  access  to  his  land  except  over 
the  land  of  his  grantor,  it  was  held,  that  he  had  a  way,  by  neces- 
sity, across  audi  land,  and  that  he  was  entitled  to  maintain  an 
action  against  a  railway  company  for  obstructing  it.^^ 

8.  So  also  where  the  free  -flow  of  water  from  a  saw-mill  is 
obstructed  by  the  erection  of  a  railway  bridge  below  the  mill, 
the  company  are  liable  to  the  owner  of  the  mill  in  an  action  of 
tort.^*  But  they  are  not  liable  for  any  increased  expense  thereby 
occasioned  to  the  mill-owner,  in  getting  logs  up  tlie  stream  to  his 
mill,  whether  the  stream  be  navigable  for  boats  and  rafts,  or  not." 

9.  Where  the  statute  gives  remedy  against  all  persons  inter- 
ested," the  occupant  of  land  is  liable  to  be  affbctcd  by  the  proceed- 
ings, And  a  similar  construction  will  prevail  where  the  remedy  is 
given  to  all  interested.^* 

It  seems  indispensable  to  the  asserting  of  any  valid  claim  for 
land  damages  that  the  claimant  prove  the  character  and  extent 
*  of  his  title.^*  And  it  is  here  said  that  possession  alone  will  not  be 

*•  Boynton  p.  Peterboro  &  Shirley  Railw.,  4  Cush.  467. 

"  Turnpike  Road  r.  Brosi,  22  Penn.  St.  29. 

"  Parks  r.  City  of  Boston,  16  Pick.  198.  See  also  Burbridge  v.  New  Albany 
&  S.  Railw.,  9  Ind.  546. 

"  Kimball  r.  The  Cocheco  Railw.,  7  Post.  448. 

"  Blood  t.  Nashua  &  Lowell  Railw.,  2  Gray,  137. 

"  Gilbert  v.  Havermeyer,  2  Sandf.  606.  The  term  "owner"  in  a  statute 
requiring  compensation  by  railway  companies  for  land  taken  by  them  inclndes 
everj'  person  having  ^y  title  to  or  interest  in  the  land,  capable  of  being  injuri-d 
by  the  construction  of  the  road,  and  extends  to  the  interest  of  a  lessee  or  termor. 
Bait.  &  Ohio  Railw.  v.  Thompson,  10  Md.  76;  Lewis  r.  Railw.,  U  Rich.  91 ; 
Sacramento  Railw.  r.  MofTatt,  7  Cal.  577. 

"  Bobbins  c.  Milw.  &  Uorricon  Railw.  Co.,  6  Wiac.  636. 

•  349,  360 


348  EMINENT  DOMAIN.  CH.  XI. 

regarded  as  ground  of  presumption  of  title  in  fee.  And  where  the 
entire  fee  in  the  land  is  condemned  to  the  use  of  the  railway, 
and  the  money  paid  into  court,  it  must  be  apportioned  to  the 
several  owners  of  different  interests  in  the  land,  as  nearly  as  pos- 
sible, as  if  it  were  the  land  itself.  And  the  same  result  will  follow 
where  a  permanent  right  of  way  is  given  in  any  form  to  a  perpetual 
corporation.^' 

10.  And  where  a  tenant,  who  held  the  land  for  a  term  of  years, 
with  a  strict  clause  against  alienation  or  subletting,  assigned  a 
small  portion  to  a  railway,  for  a  temporary  purpose,  the  company 
not  dealing  with  the  landlord,  or  giving  him  any  compensation  for 
the  use  of  the  land,  it  was  held,  that  he  was  entitled  to  maintain 
ejectment  against  the  company,  and  his  tenant,  for  the  forfeiture 
incurred  by  this  subletting.^^ 

11.  And  the  damages  assessed  are  payable  to  the  owner  of  the 
land  at  the  date  of  the  adjudication,  and  do  not  pass  by  deed  to  a 
subsequent  purchaser.!^  And  where  the  company  gave  notice  to 
treat  for  land  to  a  tenant  at  will,  and  were  allowed  to  take  pos- 
session and  complete  their  line,  a  person  who  had  subsequently 
purchased  an  undivided  portion  of  .the  land  was  not  allowed  to 
maintain  a  bill  to  restrain  the  company  from  the  use  of  the 
land.2o 

"  Ross  V.  Adams,  4  Dutcher,  160.  In  such  case  the  party  having  an  unex- 
pired lease  will  only  be  entitled  to  so  much  of  the  interest  of  the  fund  in  court  as 
will  indemnify  him  for  his  loss  of  rent,  and  the  rest  of  the  income  must  accumu- 
late till  the  expiration  of  the  lease.  Wootton's  Estate,  Law  Rep.  1  Eq.  589. 
And  all  costs  of  parties  summoned  by  the  railway  in  order  to  receive  a  perfect 
title,  must  be  paid  by  the  company.  Haynes  v.  Barton,  L.  R.  1  Eq.  422.  And 
the  costs  of  paying  money  out  of  court  for  the  benefit  of  a  charity  must  also  be 
borne  by  the  company.  Lathropp's  Charity,  L.  R.  1  Eq.  467.  A  party  not 
summoned,  although  having  knowledge  of  proceedings  to  condemn  land,  is  not 
bound  thereby ;  but  may  have  an  action  to  protect  his  interest.  Martin  v.  L.  Ch. 
&  Dover  Railw.,  L.  R.  1  Eq.  145;  8.  c.  id.  1  Ch.  Ap.  501,  See  also  London, 
Br.  &  S.  C.  Railw.  in  re,  as  to  costs  of  parties  summoned.     LawR.  1  Ch.  Ap.  599. 

"  Legg  V.  Belfast  »&  Bellamy  Railw.,  1  Irish  Law  (n.  s.),  124,  n. 

"  Lewis  V.  Wilm.  &  Manchester  Railw.,  11  Rich.  Law,  91.  But  where  a 
third  person  agreed  to  pay  the  land-owner  interest  on  the  agreed  compensation 
for  his  land  damages  "  if  said  railway  shall  be  kept  in  operation,"  his  object 
being  to  secure  the  beneficial  operation  of  the  railway  by  running  passenger  and 
freight  trains,  it  was  held  he  was  not  bound  to  perform  on  his  part,  merely 
because  the  railway  occasionally  ran  a  freight  train.  Jepherson  v.  Hunt,  2  Allen, 
417. 

"  Camochan  v.  Norwich  &  Spalding  Railw.,  26  Beav.  169. 


§§  84,  85.         ARBITRATION.  —  STATUTE  OF  LIMITATIONS. 


349 


SECTION   XXII, 


Arbitration. 


1.  Attorney,  vnthout  express  power,  maa/  rs- 
fer  disputed  claim. 


2.  Award   binding,    tudess    objected   to   m 
court. 


§  84.  1.  It  was  held  that  an  attorney,  who  had  no  authority 
under  seal,  either  to  defend  or  refer  suits,  might  nevertheless  make 
a  valid  reference  of  a  disputed  claim  against  the  company,  under  a 
judge's  order.^ 

•  2.  And  if  the  company  object  that  the  arbitrator  awarded 
upon  matters  not  submitted,  they  should  have  applied  to  the 
court  to  revoke  the  submission,  or  set  aside  the  award,  upon  its 
return  into  court ;  but  not  having  done  so,  the  claim  being  set 
up  and  entertained  by  the  arbitrator,  the  award  is  binding.^ 
The  same  principles  would  probably  obtain  in  the  American 
courts. 

SECTION   XXIII. 
Statute  of  Limitations. 


1.  OeHeral  limitation  of  actions  applies  to 

land  claim. 

2.  Filing  petition  will  not  save  bar. 


8.   Acquiescence  of  forty  years  by  land-owner, 

effect  of 
4.    The  estoppel  will  take  effect  if  the  use  is 

clearly  adverse. 


§  85.  1.  Where  neither  the  general  statutes  nor  the  special  act 
contain  any  specific  limitation,  in  regard  to  claims  upon  railway 
companies  for  land  damages,  it  has  been  held  tliat  the  general 
statute  of  limitation  of  actions,  for  claims  of  a  similar  character, 
will  apply.  And  where  the  claim  was  for  an  injury  to  an  island, 
caused  by  the  erection  of  a  railway  bridge,  and  to  the  award  of  the 

'  Faviell  v.  The  Eastern  Counties  Railw.,  2  Exch.  344.  It  is  held  generally, 
in  the  English  courts,  that  an  attorney  should  be  appointed  under  seal  to  prose- 
cute and  defend  suits,  on  the  part  of  corporations.  Thames  Haven  Dock  & 
Railw.  Co.  ».  Hall,  6  Man.  &  G.  274;  Arnold  v.  The  Mayor  of  Poole, 
4  id.  860. 

But  when,  by  the  incorporation  of  a  railway  company,  the  directors  were  em- 
powered to  appoint  and  displace  any  of  the  officers  of  the  company,  the  appoint- 
ment of  an  attorney,  by  the  company,  need  not  be  under  seal.     See  post,  §  141. 

•361 


350  EMINENT  DOMAIN.  CH.  XI. 

viewers,  and  the  company  plead  actio  non  infra  sex  annos,  the  plea 
was  held  good.^ 

2.  And  where  the  statute  provides,  that  no  process  to  recover 
compensation  for  land  or  property  taken  by  a  railway  shall  "  be 
sustained,  unless  made  within  three  years  from  the  time  of  taking 
the  same,"  a  mere  filing  of  an  application  with  the  clerk  of  the 
county  commissioners,  without  bringing  it  to  the  notice  of  the 
commissioners,  or  any  action  of  theirs  thereon  until  the  three 
years  have  elapsed,  will  not  save  the  bar  of  the  statute.^ 

*  The  land-owner  may  also  traverse  the  right  of  the  company  to 
take  the  land,  either  originally,  for  the  location  and  construction 
of  their  road,  on  the  ground  that  it  does  not  come  within  their 
line,  or  the  line  of  deviation  from  the  prescribed  route,  or  that 
they  have  not  taken  the  proper  preliminary  steps,  or  for  any  other 
cause  ;  or,  when  the  company  propose  to  change  their  route,  or  to 
enlarge  their  accommodation  works,  on  the  ground  of  having  made 
their  exclusive  election  in  one  case,  or  the  want  of  necessity  in  the 
other.2 

3.  Where  the  land-owner  had  allowed  the  company,  upon  an 
appraisal  in  the  alternative  stating  both  the  value  of  the  land 
and  of  the  annual  use,  to  occupy  the  same  for  the  purposes  of  a 
canal,  for  more  than  forty  years,  paying  an  annual  sum  about 
the  same  which  had  been  awarded,  the  award  being  defective  in 
law,  in  that  no  person  had  been  made  a  party  to  the  proceeding 
who  was  authorized  to  represent  the  land-owner,  who  was  an 
infant,  it  was  held  that  this  was  no  ground  of  presuming  a  con- 
tract on  the  part  of  the  land-owner  to  convey  the  land  in  fee  in 
consideration  of  a  rent  charge.*  But  it  was  held  that  an  eject- 
ment on  the  part  of  the  land-owner,  and  the  erection  of  a  bridge  by 
him,  ought  to  be  restrained  by  injunction,  on  the  ground  of 
acquiescence,  the  company  undertaking  to  put  in  force  their  par- 
liamentary powers  which  had  not  expired,  and  thus  obtain  the 
land. 

4.  But  in  another  case,  where  the  party  had,  by  contract  with 
the  original  land-owner,  used  the  land  of  others  for  more  than  fifty 
years,  first  for  a  tram-way  and  subsequently  for  a  railway  in  a 

>  Forster  v.  The  Cumberland  Valley  Railw.,  23  Penn.  St.  371. 

*  Charles  River  Railw.  v.  County  Commissioners  of  Norfolk,  7  Gray,  389. 

3  South  Carolina  Railw.  v.  Blake,  9  Rich.  228 ;  ante,  §  72 ;  post,  §  105,  n.  14. 

*  Somerset  Canal  Co.  v.  Harcourt,  2  De  G.  «&  J.  596. 

*362 


§  86.  STATUTE   OP   LIMITATIONS.  861 

different  place  across  the  same  land,  it  was  held  that  the  present 
land-owner  was  concluded  by  the  agreement,  and  that  the  change 
of  one  place  for  another  would  not  defeat  the  estoppel.*  All  the 
party  can  claim  is,  to  have  damages  under  the  statute.* 

»  Mold  p.  Wheatcroft,  29  Law  J.  Cb.  ch.  U ;  8.  c.  27  Beav.  610. 


352      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    CH.  XII. 


♦CHAPTER  XII. 


REMEDIES  BY  LAND-OWNERS   UNDER  THE   ENGLISH  STATUTE. 


SECTION    L 


Company  hound  to  purchase  the  whole  of  a  House,  etc. 


1.  The  company  to  take  the  accessories  with 

the  house. 

2.  But  the  owner  has  an  election  in  regard  to 

that. 
8.   A  deposit  of  the  appraised  value  means 

the  value  qfaU  the  company  are  bound  to 

take. 
4.    Company  bound  to  take  all  of  which  they 


take  part,  and  pay  special  damage  be- 
sides. 

Where  company  desire  part,  not  compella- 
ble to  take  whole  unless  they  persist  in 
taking  part. 

Land  separated  from  house  by  highway  not 
part  of  premises. 


§  86.  1.  By  the  English  statute,^  railway  companies  are  bound 
to  purchase  the  whole  of  a  house  and  lands  adjoining,  if  required, 
when  they  give  notice  to  take  part ;  and  also  if  the  house  or  the 
principal  portion  of  it  be  within  fifty  feet  of  the  railway,  and 
deteriorated  by  it.  The  act  includes  house,  garden,  yard,  ware- 
house, building,  or  manufactory ;  but  it  was  considered  that  this 
did  not  extend  to  a  lumber-yard.^  Under  a  similar  provision,  in  a 
special  charter,  it  was  held,  that  the  company  were  not  bound  to 
take  the  entire  premises,  where  the  principal  dwelling-house  only 
was  within  the  prescribed  limit.^ 

2.  It  has  been  considered  that  this  statute  gave  an  option  to  the 
land-owner,  whether  the  company  should  take  the  whole  or  part 
of  the  house,  so  situated.*    And  in  this  last  case  it  was  *  held, 

'  8  &  9  Vict.  cb.  18,  §  92. 

'  Stone  V.  Commercial  Railw.,  9  Simons,  621 ;  s.  c.  1  Railw.  C.  375 ;  Reg.  v. 
Sheriff  of  Middlesex,  3  Railw.  C.  396.  But  it  will  include  an  open  space  in  front 
of  a  public  house  used  by  guests  for  the  purpose  of  access  to  the  house  with 
vehicles,  the  land  having  passed  with  the  lease  of  the  house  for  many  years. 
Mason  v.  London,  Chatham,  &  Dover  Railw.,  L.  R.  6  Eq.  101. 

'  Reg.  V.  L.  &  Greenw.  Railw.  Co.,  3  Q.  B.  166 ;  s.  c.  3  Railw.  C.  138. 

*  Sparrow  v.  The  Oxford,  "Worcester,  &  Wolverhampton  Railw.  32  De  G. 
M.  &  G.  94 ;  8.  c.  13  Eng.  L.  &  Eq.  33.  By  Lord  CramcoHh  and  Sir  Knigid 
Bruce,  L.  J.  See  also  Barker  v.  N.  Staffordshire  Railw.,  2  De  G.  &  S.  55  ;  s.  c. 
*  353,  354 


§  86.  COMPANY   BOUND  TO   PURCHASE   WHOLE  OP  HOUSE.  853 

that  a  narrow  strip  of  land  adjoining  an  iron  and  tin-plate 
factory,  which  had  been  used  as  a  place  of  deposit  for  rubbish, 
and  over  which,  a  person  had  a  right  of  way,  was  such  a  part 
of  the  manufactory,  that  tlie  company  wore  bound  to  take  the  whole.* 

3.  And  the  statute  requiring  a  deposit  of  the  appraised  value 
of  the  land  taken  by  a  railway  company,  before  entering  upon  the 
same,  imports  the  value  of  the  whole  premises,  in  all  cases  where 
the  company  give  notice  of  requiring  part  and  the  owner  elects, 
according  to  the  terms  of  the  statute,  that  they  shall  take  the 
whole  .^ 

4.  Where  three  adjoining  liouses  had  gardens  laid  out  from  the 

6  Railw.  C.  401,  419,  where  JiOrd  CottenJiam,  Chancellor,  intimates  an  opinion, 
that  certain  parcels  of  land  (and  a  brine-pit  and  steam-engine  upon  one  of  them) 
adjoining  salt-works,  are  not  a  part  of  the  manufactory.  But  his  lordship  gives 
a  very  satisfactorj'  reason  for  denying  the  aid  of  the  court,  viz.,  "  That  a  party 
having  known  his  rights,  and  having  had  his  claim,  in  respect  of  them,  disposed 
of  [upon  the  original  bill,  and  by  leave  of  court  then  filing  a  supplemental  bill] , 
if  he  then  raises  a  new  ground  of  equity,  does  not  present  his  case  in  a  form  to 
entitle  him  to  ask  for  the  extraordinary  interposition  of  this  court." 

In  Sparrow  v.  The  Oxford,  &c.  Railw.  Co.,  2  De  G.,  M.  &  G.  94 ;  8.  c.  13  Eng. 
L.  &  Eq.  33,  Lord  Cranworth,  L.  J.,  made  some  very  significant  suggestions  in 
regard  to  the  rights  of  land-owners  to  compensation.  ' '  The  only  remaining  ques- 
tion," said  his  lordship,  "is  one  which  has  been  raised  now  for  the  first  time,  namely, 
that  if  they  cannot  take  the  land,  they  are  now  entitled  to  burrow  under  it,  as  it 
were  to  make  a  tunnel,  which  they  say  they  are  able  and  willing  to  do,  without 
taking  or  touching  any  part  of  the  surface.  It  was  argued  in  this  way,  '  Suppose 
the  manufactory  were  at  the  top  of  a  hill,  and  you  were  burrowing  under  it,  at  the 
distance  of  a  thousand  feet,  are  they  then  taking  part  of  the  manufactory'  P '  I 
do  not  feel  myself  called  upon  to  answer  that  question,  but  if  I  were,  I  rather 
believe  you  are,  on  the  principle  of  the  maxim,  Cujits  est  solum,  tjus  est  usque  ad 
inferos.  Do  you  mean  to  say,  that  if  you  are  an  inch  below  the  surface,  you 
would  not  be  taking  any  part  of  the  manufactory-  ?  I  am  inclined  to  think  that 
however  deep  below  [the  tunnel  was  made,]  it  would  be  within  the  enactment. 
If  that  has  been  a  casus  omissus,  I  think  it  ought  to  be  construed  in  a  way  most 
favorable  to  those  who  are  seeking  to  defend  their  property  from  invasion."  In 
the  case  of  Ramsden  v.  The  Manchester  S.  Junction  Railw.,  1  Exch.  723,  it  was 
determined,  that  a  railway  company  could  not  tunnel,  even  a  highway,  without 
first  making  compensation  to  the  owner  of  the  freehold,  under  the  Land  Clauses 
Act.  The  company  arC  not  bound  to  take  property  more  than  filly  feet  from 
the  centre  line  of  the  road,  unless  it  is  incapable  of  separation.  Queen  r.  Lon- 
don &  G.  Railw.,  3  Ad.  &  EU.  (n.  s.)  166. 

»  Underwood  r.  The  Bedford  »fe  Cambridge  Railw.,  11  C.  B.  N.  S.  442;  s.c. 

7  Jut..  N.  S.  941 ;  Dadson  v.  East  Kent  Railw.  lb.  So  an  offer  of  compensa- 
tion to  the  party  must  be  distinct  from  costs.  BaUi  v.  Metropolitan  Board  of 
Works,  L.  R.,  1  Q.  B.  337. 

23 


354      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.   CH.  XII. 

plat  of  land  upon  which  they  were  built  for  the  accommodation 
*  of  each,  and  a  railway  company  propose  to  take  a  strip  of  land 
from  the  gardens  attached  to  two  of  the  houses  upon  the  side 
most  remote  from  the  houses,  and  the  owner  elected  to  have  the 
company  take  the  houses,  which  they  declined  to  do,  but  took 
the  land;  the  company  were  held  liable  to  purchase  the  whole 
of  the  two  houses,  the  gardens  being  part  of  the  houses  to  which 
they  were  attached,  and  that  they  were  also  liable  to  make 
compensation  for  any  injury  sustained  in  respect  of  the  other 
house.^ 

6.  It  has  also  been  determined,  that  the  railway,  after  giving 
notice  to  purchase  part  of  a  house,  &c.,  and  being  required  by  the 
owner  to  take  the  whole,  cannot  be  compelled  by  mandamus  to 
take  the  whole,  as  the  act  of  parliament  imposes  no  such  obligation. 
The  statute  is  intended  to  protect  the  owner  from  being  compelled 
to  sell  a  part,  but  does  not  compel  a  company,  wanting  a  part 
only,  to  take  the  whole,  if  they  chose  to  waive  their  claim  alto- 
gether, and  the  mandamus  having  claimed  the  whole,  could  not  go 
for  a  part  only.^ 

6.  The  plaintiflf  was  an  owner  in  fee  of  a  house  on  one  side  of 

«  Cole  V.  Crystal  Palace  Kailw.,  6  Jur.  N.  S.  1114 ;  s.  c.  27  Beav.  242.  The 
term  "house"  in  the  statute  includes  all  that  would  pass  by  the  same  word  in 
an  ordinary  conveyance.  Hewson  v.  London  &  South  Western  Rallw.  Co.,  8 
W.  R.  467  ;  Ferguson  v.  Brighton  &  South  Coast  Railw.,  9  L.  T.  N.  S.  134 ;  s.  c. 
30  Beav.  100.  It  will  therefore  embrace  all  of  a  series  of  gardens  connected  by 
a  gravel  walk  passing  through  the  walls  of  the  different  gardens.  lb.  See  King 
V.  "Wycombe  Railw.,  6  Jur.  N.  S.  239;  8.  c.  28  Beav.  104.  A  hospital  may 
compel  a  railway  company  to  take  the  whole  of  the  hospital  if  they  insist  upon 
taking  one  wing  used  for  the  same  purposes  as  the  rest  of  the  building,  although 
connected  only  by  a  wall.  St.  Thomas  Hospital  v.  Charing-Cross  Railw.  Co.,  1 
Johns.  &  H.  400 ;  8.  c.  7  Jur.  N.  S.  256.  Houses  in  the  course  of  construction 
come  within  the  statute.  Alexander  v.  Crystal  Palace  Railw.,  8  Jur.  N.  S.  833 ; 
8.  c.  30  Beav.  556.  See  also  Chambers  v.  London,  Chatham,  &  Dover  Railw., 
8  L.  Times,  N.  S.  235.  Land  used  for  purposes  of  pastime,  as  archery  and 
dancing,  but  chiefly  as  a  pasture  for  cows,  although  important  to  the  enjoyment 
of  the  house,  is  not  so  a  part  of  the  same  premises  as  to  require  the  company  to 
take  it  with  the  house  or  the  house  with  that.  Pulling  v.  London,  Chatham, 
&  Dover  Railw.  Co.,  10  Jur.  N.  S.  665 ;  8.  c.  33  Beav.  644. 

'  Queen  v.  The  London  &  South  Western  Railw.  Co.,  12  Q.  B.  775;  s.  c.  5 
Railw.  C.  669.  The  remark  of  Lord  Denman,  in  closing  his  opinion  in  this  case, 
is  applicable  to  similar  cases  everywhere.  "We  have  to  lament  the  waste  of 
time  that  has  occurred,  from  the  obscurity  thrown  about  the  case  by  the  super- 
fluous matter  foisted  into  the  record." 
*  355 


§  87.   THE  COMPANY  BOUND  TO  TAKE  INTERSECTED  LANDS. 


355 


*  a  high  road,  where  ho  had  resided  for  a  great  number  of  years. 
Some  years  ago  he  purchased  six  acres  of  land  on  the  other  side 
of  the  road,  upon  part  of  which  there  were  built  three  houses. 
Two  of  the  houses  were  let  to  tenants,  the  third  house  was  occu- 
pied by  the  plaintiff's  groom,  and  other  servants  ;  the  rest  of  the 
land  which  lay  beyond  the  houses  was  used  by  the  plaintiff  for 
pasturing  his  cows,  horses,  &c.  The  plaintiff  alleged  that  the  six 
acres  were  indispensable  to  the  enjoyment  of  the  houses  by  him. 
A  railway  wanting  part  of  the  six  acres  which  lay  about  250  yards 
from  the  plaintiff's  house,  the  plaintiff  sought  to  compel  the  com- 
pany to  take  the  house  also,  on  the  ground  that  the  land  formed 
part  of  his  house,  within  the  92d  section  of  the  Act.  But  the 
motion  for  injunction  having  been  denied  by  the  Vice-Chancellor, 
Wood,  his  judgment  was  affirmed  in  the  Court  of  Chancery  Appeal, 
Lord  Justice  Knight  Bruce  dubitante.^ 


SECTION   II. 

The  Company  compeUaMe  to  take  intersected  Lands,  and  the 
Owner  to  sell. 


1.    When  less  than  half  an  acre  remains  on 
either  side,  company  must  buy. 


2.  Owner  must  sell  where  land  of  less  txilue 

than  railroad  crossing. 

3,  4.    Word  "  town  "  how  construed. 


§87.  1.  By  the  93d  section  of  the  English  statute  the  com- 
pany is  compellable  to  take  lands,  not  in  a  town,  or  built  upon, 
which  are  so  intersected  by  the  works  as  to  leave  either  on 
one  or  both  sides  a  less  quantity  of  land  than  half  a  statute 
acre. 

2.  And  by  section  94,  if  the  quantity  of  land  left  on  either  side 
of  the  works  ^  is  of  less  value  than  a  railway  crossing,  and  the 

«  Steele  V.  Midland  Railw.,  Law  Rep.  1  Ch.  275 ;  8.  c.  12  Jur.  N.  S.  218. 

>  8  and  9  Vict.  ch.  18,  §§  93  and  94 ;  Falls  v.  Belfast  &  B.  Railw.,  11  Irish  L.  R. 
184.  This  statute  does  not  apply  to  lands  in  a  town  or  built  upon.  Marriage 
V.  The  Eastern  Co.'s  R.  and  the  London  and  B.  Railw.,  80  Law  Times,  264 ;  8.  c. 
9  Ho.  Lds.  32,  where  the  judgment  of  the  Excheq.  Chamber  2  H.  &  N.  649,  is 
reversed,  and  the  statute  held  to  apply  to  all  intersected  lands,  whether  in  a 
town  or  not.  A  land-owner  is  not  entitled  to  the  costs  of  an  inquirj-  whether  the 
land  is  of  less  value  than  the  cost  of  crossing.  Cobb.  c.  Mid  Wales  Railw.,  Law 
Rep.  1  Q.  B.  342. 
•366 


356      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH   STATUTE.   CH.  XII. 

owner  have  not  other  lands  adjoining,  and  require  the  promoters 
*  to  make  the  crossing,  the  owner  may  be  compelled  to  sell  the 
land. 

3.  It  was  held,  that  the  term  "  town,"  in  a  turnpike  act,  import- 
ed a  "  collection  of  houses,"  and  that  the  extent  of  the  town  was 
to  be  determined  by  the  popular  sense  of  the  term,  and  to  include 
all  that  might  fairly  be  said  to  dwell  together.^ 

4.  And  in  another  case,  it  is  said,  that  the  term  includes  all  the 
houses,  which  are  continuous,  and  that  this  includes  all  open 
spaces  occupied,  as  mere  accessories  to  such  houses.* 


SECTION    III. 


Effect  of  Notice  to  Treat  for  the  purchase  of  Land. 


1.  Important  question  under  statute  of  limita- 

tions. 

2.  Company  compelled  to  summon  jury. 

8.   Ejectment  not  maintainable  against  com- 
pany. 
4.   Powers  to  purchase  or  enter,  how  saved. 


5.  Subsequent  purchasers  affected  by  notice 

to  treat  as  the  inception  of  title. 

6.  But  the  notice  may  be  unthdraum  before 

any  thing  is  done  under  it. 

7.  Not  indispensable  to  declare  the  use,  or  that 

it  is  for  station,  and  another  company  to 
participate  in  use. 


§88.  1.  Inasmuch  as  the  time  for  taking  land,  by  the  English 
statute,  is  limited  to  three  years,  an  important  question  has 
arisen  there,  in  regard  to  the  effect  of  instituting  proceedings, 
by  giving  notice  to  treat,  within  the  time  limited,  although  not 
in  season  to  have  the  matter  brought  to  a  close  before  its  expi- 
ration. 

2.  This  having  been  done,  and  the  land-owner  having  intimated 
his  desire  that  a  jury  should  be  summoned,  but  the  company 
taking  no  further  steps,  the  question  was  whether  a  writ  of  man- 
damus would  lie,  after  the  prescribed  period  had  elapsed,  to  compel 
the  company  to  proceed  to  summon  a  jury.  It  was  determined  in 
the  affirmative.^ 

»  Reg.  r.  Cottle,  3  Eng.  L.  &  Eq.  474;  8.  c.  16  Q.  B.  412. 

'  Elliott  p.  South  Devon  Railw.,  2  Exch.  725.  See  also  Carington  v.  Wycomb 
Railw.,  Law  Rep.  2  Eq.  825. 

'  The  Queen  v.  Birmingham  &  Oxford  Junction  Railw.,  15  Q.  B.  634;  s.  c. 

6  Railw.  C.  628 ;  Birmingham  &  Oxford  June.  Railw.  Co.  v.  Regina,  1  El.  & 

Bl.  293 ;  8.  c.  4  Eng.  L.  &  Eq.  276,  where  the  judgment  of  the  Q.  B.  was  fully 

affirmed  in  the  Exchequer  Chamber.     The  court  say,  "  The  notice  to  treat  is  an 

*367 


§  88.       NOTICE  TO  TREAT  FOR  PURCHASE  OP  LAND.        357 

*  3.  So,  too,  where  the  company  have  taken  possession  of  land, 
by  depositing  the  value  of  the  land  iu  the  Bank  of  England,  and 
executing  a  bond  to  the  party  to  secure  payment,  subject  to 
future  proceedings,  as  they  may  do,  and  where  the  company 
took  no  further  steps  to  ascertain  the  sum  to  be  paid  by  them, 
as  compensation,  until  the  time  limited  for  exercising  their  com- 
pulsory powers  had  expired,  it  was  held,  that  having  rightfully 
entered  upon  the  land  before  the  expiration  of  the  prescribed 
period,  an  ejectment  could  not  be  maintained  against  them  after 
that  period.  The  proper  remedy  for  the  land-owner  is  by  writ  of 
mandamus.^ 

4.  So,  too,  if  they  have  made  the  deposit,  and  given  a  bond  for 
the  payment  of  the  price,  under  this  same  section,^  a  day  *  before 
the  efflux  of  the  time  limited,  although  they  had  not  entered  upon 

inchoate  purchase,  and  after  that  has  been  given.  In  due  time,  it  is  competent  for 
the  land-owner  to  compel  the  completion  of  the  purchase."  But  where  an  an- 
nuitant, having  power  to  enter  upon  land  and  distrain  for  his  security,  was 
served  with  notice  by  a  railway  company  of  their  intention  to  purchase,  and 
the  company  subsequently  purchased  the  property  of  a  prior  mortgagee,  who 
had  a  power  of  sale,  it  was  held  the  annuitant  could  not,  in  equity,  compel  the 
company  to  pay  the  owners  of  the  annuity,  he  alleging  no  fraud  or  other  im- 
proper conduct  on  the  part  of  the  company.     Hill  r.  Great  Northern  Railw., 

5  De  G.  M.  &  6.  66 ;  s.  c.  27  Eng.  L.  &  Eq,  198,  reversing  the  decision  of  one 
of  the  vice-chancellors  in  8.  c.  28  Eng.  L.  &  Eq.  565.  See  also  Met.  Railw.  Co. 
c.  Woodhouse,  11  Jur.  N.  S.  296.  If  the  land-owner  lie  by  an  unreasonable 
time,  he  cannot  maintain  mandamus,  or  where  the  company  abandon  their  notice 
to  take  part  of  land  upon  the  owner  serving  notice  to  take  the  whole.  Quicke 
ex  parte,  13  W.  R.  924. 

*  Doe  d.  Armistead  v.  The  N.  StaflTordshire  Railw.,  16  Q.  B.  626 ;  8.  c.  4  Eng. 
L.  &  Eq.  216.  The  expression  "  deviation,"  which  appears  in  the  acts  of  par- 
liament and  in  the  English  cases,  is  here  determined  to  import  the  distance  from 
the  line  of  railway  upon  the  parliamentary  plans  which  are  the  basis  of  the  charter, 
and  one  hundred  yards  "  deviation  "  is  commonly  allowed,  in  the  acts.  Worsley 
c.  The  South  Devon  Railw.  Co.,  16  Q.  B.  639 ;  8.  c.  id.  223.  See  also  Lind  v. 
Isle  of  Wight  Ferry  Co.,  7  L.  T.  N.  S.  416.  The  courts  will  restrain  the  com- 
pany within  the  limits  of  deviation  allowed  by  the  act,  even  where  the  plans 
deposited  contain  no  limitation.     Higlej  r.  Lan.  &  Y.  Railw.  Co.,  4  De  G.  M. 

6  Gr.  352.  The  line  of  deviation  controls  the  right  rather  than  the  delineations 
on  the  plan.  Weld  v.  So.  Western  Railw.  Co.,  32  Beav.  840 ;  Knapp  v.  London 
Chatham  &  Dover  Railw.,  2  H.  &  C.  212. 

'  The  Marquis  of  Salisbury  p.  The  Great  Northern  Railw.  Co.,  17  Q.  B.  840; 
8.  c  10  Eng.  L.  &  Eq.  344.  The  position  is  here  distinctly  assumed,  that  after 
the  notice  to  treat  the  parties  stand  in  the  relation  of  vendor  and  purchaser, 
and  the  company  are  not  at  liberty  to  recede.     All  the  after  proceedings  are 

•368,869 


358      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    CH.  XII. 

the  land,  their  powers  to  purchase  or  enter  upon  the  lands  are 
saved,^ 

6.  And  where  a  railway  company  gave  notice  to  a  tenant  at 
will  to  take  part  of  the  lands,  and  the  company  was  allowed  to 
take  possession  and  complete  their  line,  and  afterwards  a  person, 
who  had,  subsequently  to  the  notice,  purchased  one-ninth  of  the 
land,  filed  a  bill  merely  praying  an  injunction  to  restrain  the 
railway  company  from  entering  upon,  continuing  in  possession  of, 
or  otherwise  interfering  with  the  land,  the  bill  was  dismissed 
with  costs.* 

6.  But  it  seems  to  be  considered  that  mere  notice  by  a  railway 
company  of  an  intention  to  take  land,  may  be  withdrawn  if 
done  before  the  company  have  taken  possession  of  the  land,  or 
done  any  thing  in  pursuance  of  the  notice.^  And  this  is  espe- 
cially true  where  the  land  consists  of  a  house  and  appurtenances, 
and  the  notice  only  extends  to  taking  a  part  of  the  land,  and  the 
owner  requires  the  company  to  take  the  whole  land  with  all  the 
buildings. 

7.  It  is  no  objection  to  a  notice  to  take  land  for  the  use  of  a 
railway  company  that  it  does  not  declare  the  use  for  which  it  is 
proposed  to  be  taken ;  nor  will  it  affect  the  title  of  the  company 
that  it  is  taken  for  a  station  for  the  joint  use  of  that  and  another 
company,  which  latter  company  could  not  have  taken  the  land  for 
their  own  use  alone. ^ 

merely  for  the  purpose  of  ascertaining  the  price  of  the  land.     Sparrow  v.  Ox- 
ford &  Worcester  Railw.  Co.,  9  Hare,  436 ;  12  Eng.  L.  &  Eq.  249. 

*  Camochan  v.  Norwich  «S;  Spalding  Railw.,  26  Beav.  169.  But  a  notice 
to  treat,  in  order  to  become  the  inception  of  title,  must  be  followed  up  within  a 
reasonable  time,  or  it  will  be  regarded  as  abandoned.  Hedges  ».  The  Metro- 
politan Railw.  Co.,  28  Beav.  109;  s.  c.  6  Jur.  N.  S.  1275. 

*  King  V.  The  Wycombe  Railw.  Co.,  6  Jur.  N.  S.  239;  s.  c.  28  Beav.  104; 
Gardner  r.  Charlng-Cross  Railw.  Co.,  2  J.  &  H.  248;  s.  C.  8  Jur.  N.  S.  151. 
Where  the  company  agree  verbally  to  take  the  whole  of  a  house  and  land,  that 
is  a  valid  waiver  of  notice  under  the  statute,  and  will  be  enforced  in  equity. 
Binney  v.  Hammersmith  &  City  Railw.  Co.,  9  Jur.  N.  S.  773.  Tenant  coming 
into  possession  of  land  after  notice  to  treat,  and  before  proceedings  taken,  is  en- 
titled to  renewal  of  notice,  so  as  to  make  him  party.  Carter  v.  Great  Eastern 
R.  Co.,  9  Jur.  N.  S.  618.  And  a  notice  to  take  land  will  not  enable  the  com- 
pany to  proceed  and  complete  title  after  their  powers  for  compulsorj'  purchase 
have  ceased.     Richmond  v.  North  London  Railw.,  Law  Rep.  5  Eq.  352. 

«  Wood  V.  Epsom  &  L.  Railw.  Co.,  8  C.  B.  N.  S.  781. 


§89. 


BEQDISITES   OF  THE  NOTICE  TO  TREAT. 


359 


•SECTION  IV. 


Requisites  of  the  Notice  to  Threat. 


Notice  to  treat  must,  in  terms  or  hy  refer- 
enct,  aecurateltf  dtacnibe  land. 

AjUr  notice  to  treat  company  compellable 
to  purchase.  Company  cannot  retract 
ajler  giving  notice  to  treat. 


8.   New  notices  given  for  additional  lands. 
4.   Potcer  to  take  land  not  lost  by  /ormer  un- 
warranted attempt. 
6.   Lands  may  be  taken  for  branch  railuxiy, 
6.   Effect  of  notice  in  case  of  a  public  park. 


§  89.  1.  As  by  the  English  statute  the  notice  to  treat  is  made 
the  act  of  purchase,  it  is  of  the  first  importance  that  it  should 
describe  the  lands  accurately.  But  even  where  the  notice  was 
indefinite,  if  it  be  accompanied  with  a  plan  which  shows  the  very 
land  proposed  to  be  taken,  it  will  be  sufficient ;  ^  or  reference  may 
be  made  to  the  parliamentary  plan.^  The  company  can  only  claim 
to  use  what  their  notice  and  the  annexed  plan  show  clearly  was 
submitted  to  the  appraisers  to  value .^ 

2.  It  was  held  long  ago  in  the  English  courts,  under  similar 
statutes  for  taking  land  by  compulsion,  that  the  notice  to  treat 
constituted  the  act  of  purchase,  and  that  after  giving  it  there 
remained  no  longer  to  the  company  any  power  to  retract,  and  they 
will  be  compelled  by  mandamus  to  complete  the  purchase.^  Nor 
can  the  company  after  requiring  the  tenant  to  give  up  to  them  the 
possession  of  his  land  before  the  expiration  of  his  term,  afterwards 
surrender  the  same,  especially  where  damage  has  accrued  to  the 
premises  in  consequence  of  the  company  taking  possession.  They 
must  pay  money  into  court.* 

'  Sims  V.  The  Conuncrcial  Railw.,  1  Railw.  C.  431 ;  Hodges  on  Railways,  197. 

•  Kemp  r.  The  London  &  Br.  Railw.  Co.,  1  Railw.  C.  495. 

'  The  King  r.  Hungerford  Market  Co.,  4  B.  &  Ad.  327;  Same  r.  Commis- 
sioners of  Manchester,  id.  332,  n. ;  Doo  r.  The  London  &  Cr.  Railw.,  1  Railw. 
C.  257  ;  Burkinshaw  v.  Birm.  &  Ox.  June.  Railw.  Co.,  6  £xch.  475 ;  s.  c.  4  Eng. 
L.  &  Eq.  489 ;  Ed.  &  Dundee  Railw.  Co.  v.  Leven,  1  Macq.  House  of  Lords  Cases, 
284 ;  Stone  r.  The  Commercial  Railw.  Co.,  9  Sim.  621 ;  8.  c.  1  Railw.  C.  375. 
When  variance  from  notice  will  not  vitiate  precept,  see  Walker  v.  The  London 
&  Bl.  Railw.  Co.,  3  Ad.  &  Ellis  (n.  s.),  Q.  B.  744 ;  Reg.  ».  York  &  North  Mid- 
land R.  Co.,  1  El.  &  Bl.  178-858;  Reg.  v.  Ambergate  &  C.  R.  Co.,  id.  372. 
See  ante,  §  88,  and  notes. 

*  Pope  r.  Great  Eastern  Railw.,  Law  Rep.  3  Eq.  171.  Notice  to  treat  is  not 
equivalent  to  requiring  the  tenant  to  surrender  the  possession.  Queen  r.  Stone, 
Law  Rep.  1  Q.  B.  529. 

•360 


360      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH   STATUTE.   CH.  XH. 

3.  And  where  the  company  had  given  notice  to  take  twenty 
perches  of  laud,  they  cannot  subsequently  give  notice  to  restrict 
the  land  to  one  perch.^  But  the  company,  having  issued  one 
notice,  may  issue  a  second,  requiring  additional  lands.*^  They 
*  are  at  liberty,  by  new  notices  from  time  to  time,  to  take  such 
additional  lands  as  the  progress  of  the  work  shows  will  be 
requisite. 

4.  Nor  will  the  company  be  deprived  of  the  power  to  take  land 
for  the  necessary  use  of  the  works,  when  the  emergency  arises,  by 
having  previously  attempted  to  take  it  for  other  purposes  not  war- 
ranted by  their  act.' 

5.  And  the  company,  having  opened  their  main  line  for  travel, 
but  not  completed  the  stations  and  works,  are  at  liberty  to  take 
any  lands  within  the  limits  of  deviation  for  a  branch  railway.® 

6.  But  it  was  held,  that  where  the  Commissioners  of  Woods  and 
Forests  gave  notice  of  taking  lands  for  a  public  park,  as  tliey  were 
acting  in  a  public  capacity,  the  notice  given  by  them  did  not  con- 
stitute a  quasi  contract,  enforcible  by  mandamus.^ 


SECTION   V. 
The  Notice  may  he  Waived,  by  the  Party  entering  into  Negotiation. 

1.  Notice  must  be  set /ortk  in  proceedings.        I  3.    CertioTan  denied  where  party  has  suffered 

2.  Agreement  to  uxiive  operates  as  estoppel.       \  no  injury. 

§  90.  1.  It  is  a  general  rule,  in  regard  to  all  summary  and  in- 
ferior jurisdictions,  that  the  basis  of  their  jurisdiction  must  appear 
upon  the  face  of  the  proceedings.^  Hence  in  proceedings  to  take 
land  in  invitum,  under  a  notice  to  treat,  the  notice  being  regarded 

»  Tawney  v.  Lynn  &  Ely  Railw.  Co.,  4  Railw.  C.  615. 

'  Stamps  r.  Bir.  Wolv.  &  Stour  Valley  Railw.,  6  Railw.  C.  123 ;  8.  c.  7  Hare, 
25L 

'  Webb  V.  Manchester  &  Leeds  Railw.,  1  Railw.  C.  576 ;  Simpson  r.  Lancaster 
&  Carlisle  Railw.,  15  Sim.  580;  s.  C.  4- Railw.  C.  625;  Williams  r.  South 
Wales  RaUw.  Co.,  13  Jur.  443;  8.  c.  3  De  G.  &  S.  354. 

»  Sadd  V.  The  Maldon,  W.  &  Braintree  Railw.  Co.,  6  Exch.  143 ;  8.  c.  2 
Eng.  L.  &  Eq.  410. 

»  Queen  v.  The  Comm.  of  Woods  &  Forests  (Ex  parte  Budge),  15  Ad.  & 
EUis  (n.  8.),  761. 

'  Rex  r.  Bagshaw,  7  T.  R.  363;  Rexr.  Mayor  of  Liverpool,  4  Burrow,  2244; 
Rex  r.  Trustees  of  the  Norwich  Roads,  5  Ad.  &  Ellis,  563. 
*361 


§91. 


TITLE  OP  CLAIMANT  MUST   BE  DISTINCTLY  STATED. 


361 


as  essential  to  the  jurisdiction,  it  has  more  generally  been  held 
indispensable  to  the  jurisdiction  that  it  should  be  set  forth  upon 
the  proceedings.^ 

2.  But  where  the  land-owner  enters  into  negotiation  with  the 
*  company,  and  agrees  to  waive  the  notice,  he  is  afterwards  estopped 
from  taking  the  objection,  that  he  never  received  notice.^  And  it 
was  held,  that  the  party  whose  duty  it  was  to  give  the  notice,  and 
who  was  shown  by  the  returns  to  have  appeared  before  the  jury, 
cannot  object  to  the  inquisition  upon  the  ground  that  it  did  not 
disclose  a  proper  notice  to  treat.' 

3.  In  another  case,  where  application  was  made  to  the  King's 
Bench  to  issue  a  certiorari^  to  bring  up  and  quash  an  inquisition 
for  land  damages  in  a  railway  case,  on  the  ground  of  some  alleged 
defect,  the  court  say,  the  granting  the  writ  is  matter  of  discretion, 
though  tliere  are  fatal  defects  on  the  face  of  the  proceedings  which 
it  is  sought  to  bring  up  ;  and  that  it  is  almost  an  invariable  rule 
to  deny  the  writ,  where  it  appears  the  party  has  suffered  no  injury 
or  has  assented  to  the  proceedings  below.* 


SECTION    VI. 


Title  of  the  Claimard  must  he  distinctly  stated. 


1.  Claimant' i  reply  to  notice  thould  be  dear 

and  accurate. 

2.  Award  bad,  which  does  not  state  daimant't 


8.  Where  lands  are  held  by  receiver  or  com' 
mission /or  a  lunatic.  Expression  "/ee- 
simi>le  in  possession." 

n.  8.  Analogous  American  cases. 


§  91.  1.  In  reply  to  a  notice  to  treat,  the  claimant  may  state  the 
particulars  of  his  claim  and  proceed  to  treat.  In  this  case  the 
statement  should  give  a  clear  description  of  the  claimant's  interest 
in  the  land,  as  a  defect  here  is  liable  to  affect  the  validity  of  the 
after  proceedings. 

2.  In  one  case  where  the  claimant's  answer  to  the  notice  to 
treat  stated  that,  as  trustees  under  a  will,  they  claimed  an  estate 
in  copyhold,  and  a  certain  sum  as  compensation  for  their  interest 
in  the  lands,  and  appointed  an  arbitrator,  and  the  other  party 

•  Reg,  r.  The  Committee  for  the  South  Holland  Drainage,  8  Ad.  &  Ellis,  429. 
»  Reg.  r.  The  Trustees  of  Swansea  Harbor,  8  Ad.  &  Ellis,  439. 

♦  Reg.  r.  The  Manchester  &  Leeds  RaUw.  Co.,  8  Ad.  &  Ellis,  418. 

•862 


362      REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH   STATUTE.   CH.  XH. 

appointing  one,  and  an  umpire  being  agreed  upon,  he  awarded  a 
certain  sum  as  the  value  to  be  paid  to  the  trustees,  "  for  the  pur- 
chase of  the  fee-simple,  in  possession,  free  from  all  •incum- 
brances ; "  the  company  applying  to  set  aside  the  award,  upon 
the  ground  that  other  persons  claimed  an  interest  in  the  lands, 
the  court  held  the  award  bad,  for  not  finding  the  interest  of  the 
claimants  in  the  land,  or  that  they  had  a  fee-simple  which  it 
appraised.  But  the  court  did  not  set  the  award  aside,  but  left 
the  company  to  dispute  it,  when  it  should  be  attempted  to  be 
enforced.! 

3.  If  the  lands  are  in  possession  of  a  receiver,  or  the  committee 
of  a  lunatic,  a  special  application  should  be  made  to  the  Court  of 
Chancery .2  The  claimant  cannot  object  that  the  award  describes 
the  land  as  a  fee-simple  in  possession,  whereas,  the  land  is  in  pos- 
session of  a  tenant.  Lord  Benman,  Ch.  J.,  in  giving  judgment 
says,  "  The  answer  is  that  such  assumption,  if  really  made,  is  in 
favor  of  the  claimant,  and  therefore  no  matter  of  complaint  for 
him.  But  it  does  not  appear  clearly  that  any  such  assumption 
was  made.  The  expression  'fee-simple  in  possession,*  in  the 
claim,  is  used  in  contradistinction  to  fee-simple  in  reversion  or 
remainder."  ^ 

'  The  North  Staffordshire  Railw.  Co.  c.  Landor,  2  Exch.  235. 

*  In  re  Taylor  and  York  N.  Midland  Railw.,  1  Hall  &  Twells,  432;  8.  0.  6 
Railw.  Cas.  741.  In  this  case  the  Lord  Chancellor  said,  "  All  the  world  ought 
to  be  aware,  that  the  sanction  of  the  Lord  Chancellor  is  necessaiy  to  be  obtained 
in  the  first  instance,  in  cases  like  the  present." 

'  Bradshaw  and  the  East  &  "W.  I.  Docks  and  Birmingham  J.  Railw.  Co.,  12 
Ad.  &  Ellis  (n.  s.),  562.  The  vendor  of  land  to  a  railway  company  does  not 
waive  his  lien  for  damages  by  accepting  a  certificate  of  deposit  made  by  the 
cashier  of  the  company  for  the  purchase-money,  the  money  not  being  paid 
when  called  for.  Mims  v.  Macon  &  W.  Railw.  Co.,  3  Kelley,  333.  Where  a 
company  received  a  grant  of  certain  salt  mines,  subject  to  a  condition  which 
they  did  not  comply  with,  but  retained  the  lands  for  a  different  purpose,  and 
afterwards,  when  the  period  for  performing  the  condition  had  expired,  a  general 
grant  of  all  unoccupied  salt  lands  in  the  state,  necessary'  to  use,  for  constructing 
a  railway,  was  made  to  a  railway  company,  who  proceeded  and  occupied  the 
lands  above-named,  it  was  held  that  the  first  grantors  had  no  interest  or  title 
enabling  them  to  maintain  an  action  for  damages.  "They  had  the  lands  set 
apart  to  their  use,  for  making  salt,  and  had  no  right  to  enter  upon  and  occupy 
them  for  any  other  purpose,"  are  the  words  of  the  court.  Parmelee  ».  Oswego 
&  SjTacuse  Railw.,  7  Barb.  599. 

The  statute  of  Pennsylvania  gives  the  right  to  construct  lateral  railways  over 
intervening  lands,  to  the  owner  of  lands,  mills,  quarries,  coal,  or  other  mines, 
•363 


§  92.   land-owneb's  claim  must  corbespond  with  notice.    363 

•SECTION  VII. 

The  Claim  of  the  Land-owner  must  correspond  toith  the  Notice. 

§  92.  In  one  case  the  claim  of  the  land-owner  described  more 
land  than  the  notice  to  treat,  being  intersected  land,  less  than  one- 
half  acre,  which  the  company  are  bound  to  take  if  so  required. 
But  the  claim  did  not  properly  designate  the  portion  which,  it  was 
claimed,  the  company  should  take  under  their  notice,  and  that 
which  they  were  required  to  take,  as  intersected  land.  The  um- 
pire received  evidence  as  to  the  value  of  the  intersected  land,  and 
awarded  one  entire  sum  as  compensation  for  the  whole.  Held 
that  the  award  was  bad,  there  being  no  valid  submission  as  to 
intersected  lands.* 

lime-kilns,  or  other  real  estate,  in  the  vicinity  of  any  railway,  canal,  or  slack- 
trater  navigation.  It  was  held,  that  one  who  was  in  possession  of  the  land,  on 
which  a  coal-mine  was,  at  the  commencement  of  the  proceeding  to  recover  land 
damages,  and  who  had  erected  a  two-storj'  dwelling-house  upon  the  land,  was 
an  owner  of  the  coal-mine,  within  the  act.  Shoenberger  r.  Mulhollan,  8  Penn. 
St.  134.  It  is  sufficient  in  such  case  that  the  petition  be  signed  by  the  lessee 
and  agent  of  the  owner,     Harvey  r,  Lloyd,  8  Penn,  St,  331. 

It  is  considered  necessary  that  the  mortgagee  of  land  should  become  a  party 
to  the  proceedings  for  condemning  or  granting  land  to  a  railway,  in  order  to 
give  good  title  to  the  company.  Stewart  v.  Raymond  Railw.,  7  S.  &  M.  568. 
Or  that  he  should  give  his  consent,  in  writing,  in  the  case,  to  the  proceeding 
taken  by  the  mortgagor,  Meacham  r,  Fitchburg  Railw.,  4  Gush.  291 ;  8.  c,  1 
Am,  Railw,  Cas,  684,  But  the  mortgagor  may  recover  the  full  amount  of 
damage,  without  regard  to  mortgages.     Breed  c.  Eastern  Railw.,  5  Gray,  470. 

Where  the  state  held  land  for  a  state  prison,  and  granted  the  charter  of  a 
railway,  in  the  usual  form,  authorizing  the  company  to  locate  their  road,  so  that 
it  might  pass  over  the  land  of  the  state,  so  held,  but  without  any  expression  in 
the  act  of  a  design  to  aid  the  company  in  their  undertaking,  it  was  held  the 
state  might  recover  damages  for  the  land  taken.  The  court  say,  "  The  inquiry 
relates  solely  to  the  property  of  the  Commonwealth,  which  it  holds  in  fee  in  its 
capacity  as  a  body  politic.  It  appears  to  us  the  question  is  purely  one  of  inten- 
tion."— "  We  think  if  the  legislature  had  intended  to  aid  the  enterprise  by  an 
appropriation  of  money,  land,  or  other  means,  —  such  aid  being  unusual,  —  the 
purpose  to  do  so  would  have  been  in  some  way  expressed,"  Commonwealth  c. 
Boston  &  Maine  Railw,,  3  Cush.  25 ;  8.  c,  1  Am.  Railw,  Cas,  482,  496,  497, 

'  The  N,  Staffordshire  Railw,  r.  Wood,  2  Excheq,  244. 

•364 


864  ENTBT  BEFORE  COMPENSATION  IS  ASSESSED.  CH.  Xni. 

♦CHAPTER    XIII. 

ENTBT  UPON   LANDS  BEFORE  COMPENSATION   IS  ASSESSED. 

SECTION   I. 

Lands  taken  or  Injuriously  Affected,  mithout  having  previously 
made   Compensation  to  the  Parties. 

1.   No  entry  under  English  statutes  mthoid     4.    Company  may  enter  with  land-owner's  con- 


previous  compensation,  except  for  pre- 
liminary survey. 

Legal  remedies  against  company  offend- 
ing. 

What  acts  constitute  taking  possession  un- 
der statute. 


sent  ajier  agreement  for  arbitration. 

5.  Bond  may  he  given  in  certain  cases. 

6.  Company  restrained  from  using  land,  un- 

til price  paid  even  after  line  in  opera- 
tion.   But  this  rule  dissented  from. 


§  93.  1.  The  eighty-fourth  section  of  the  English  statute,  The 
Lands  Clauses,  &c.,  provides,  that  no  entry  shall  be  made  upon 
any  lands  by  the  company  until  compensation  shall  have  been 
made  under  the  act,  or  deposited  in  the  Bank  of  England,  except 
for  the  purpose  of  preliminary  surveys,  and  probing  or  boring 
to  ascertain  the  nature  of  the  soil,  which  may  be  done  by  giving 
notice,  not  more  than  fourteen  days  or  less  than  three  days,  and 
making  compensation  for  any  damage  thereby  occasioned  to  the 
owners  or  occupiers  of  such  lands. 

2.  It  has  been  considered  that  if  the  company  enter  upon  lands 
without  complying  with  the  requisitions  of  the  statute,  they  are 
liable  in  trespass  or  ejectment.^  And  in  some  cases  an  injunction 
will  be  granted.  But  where  the  company  entered  to  make  pre- 
liminary surveys,  without  giving  the  requisite  notice,  the  court 
refused  to  order  the  injunction,  but  reserved  the  question  of 
costs.2 

'  Doe  d.  Hutchinson  c.  The  Manchester,  Bury,  and  Rosendale  Railw.,  14  M. 
&  W.  687. 

'  Fooks  p.  The  Wilts,  Somerset,  and  Wejnnouth  Railw.,  5  Hare,  199 ;  s. 
C.  4  Railw.  C.  210.  In  this  case  the  injunction  was  denied,  chiefly  upon  the 
ground  that  the  alleged  trespass  was  complete  before  the  application.  The 
court  intimate  that  if  the  company  should  attempt  to  proceed  further  it  might  be 
proper  to  restrain  them  by  injunction.  The  point  of  the  company  being  in  the 
wrong,  is  distinctly  recognized  by  the  court. 
♦365 


§  93.  LANDS   TAKEN   OR  INJURIOUSLY  AFFECTED.  365 

*  3.  And  where  the  entry  was  regularly  made  upon  the  land,  for 
preliminary  surveys,  and  afterwards  the  contractors,  without  the 
knowledge  of  the  corporation,  but  with  the  consent  of  the  occupy- 
ing tenants,  brought  some  of  their  wagons  and  rails  and  other 
implements  upon  the  land,  but  did  not  commence  the  works  or  do 
any  damage,  and  this  was  without  the  assent  of  the  owner,  and 
his  agent  thereupon  filed  a  bill  to  obtain  an  injunction  against 
taking  possession  of  the  lands  until  they  had  complied  with  the 
statute,  the  Vice-Chancellor  said,  that  although  the  company  were 
bound  by  the  acts  of  their  contractors,  the  acts  done  were  not  a 
taking  possession  within  the  meaning  of  the  statute,  and  that  the 
bill  was  improperly  filed.* 

4.  But  where  the  company  agreed  with  the  land-owner  that  the 
question  of  compensation  should  be  settled  by  arbitration,  and 
thereupon  entered  upon  the  land,  by  consent  of  the  owner,  and  the 
arbitrator  made  an  award,  which  became  the  subject  of  dispute, 
and  the  owner  thereupon  gave  the  company  notice  to  quit,  and 
brought  ejectment,  it  was  held  he  could  not  recover,  although  the 
company  had  not  tendered  the  money  awarded,  or  a  conveyance, 
but  that  the  owner's  remedy  was  to  proceed  upon  the  award.* 
The  notice  to  quit  under  the  circumstances  did  not  make  the 
company  trespassers. 

5.  By  the  eighty-fifth  section,  if  the  company  find  it  necessary  to 
enter  upon  land,  for  the  purpose  of  carrying  forward  their  works, 
before  the  amount  of  compensation  can  be  settled,  they  may 
deposit  in  the  bank  the  amount  claimed,  or  in  other  cases  the 
appraisal,  and  also  give  the  party  a  bond  with  surety,  to  be  ap- 
proved by  two  justices  in  a  penal  sum  equal  to  the  amount  so 
deposited,  conditioned  for  the  payment  or  deposit  of  the  amount 
finally  fixed  as  the  ultimate  value  and  interest  thereon,  and  then 
take  possession  of  the  land  and  proceed  with  their  works.  The 
company  can  obtain  their  money  so  soon  as  the  condition  of  the 
bond  has  been  complied  with.  But  the  vendor  miist  join  in 
the  petition  for  the  money  to  be  paid  the  company,  or  else  it  must 

'  Standish  r.  Mayor  of  Liverpool,  1  Drewry,  1 ;  8.  O.  16  Eng.  L.  &  Eq. 
266. 

*  Doe  d.  Hudaon  v.  The  Leeds  and  Bradford  Railw.  16  Q.  B.  796 ;  s.  c.  6 
Eng.  L.  &  Eq.  288.  The  decision  here  goes  chiefly  upon  the  ground  of  the 
consent  of  the  land-owner  to  the  entry  of  the  company,  and  to  refer  the  com- 
pensation to  an  arbitrator. 

•366 


S66  ENTRY  BEFORE  COMPENSATION  IS  ASSESSED.  CH.  XIH. 

*  be  shown  that  he  has  been  served  \dth  a  copy  of  the  petition.^ 
It  does  not  invalidate  the  bond,  if  it  bear  date  before  the  date  of 
the  valuation.* 

6.  Where  a  railway  company  took  land  for  the  construction  of 
their  road,  without  paying  the  price,  and  after  completing  their 
works  leased  the  line  to  another  company,  it  was  held,  upon  a  bill 
against  both  companies,  to  compel  the  payment  of  the  land  dam- 
ages, that  a  decree  must  pass  for  the  plaintiff  for  payment  by  the 
first  company,  and  in  default  that  both  companies  be  restrained 
from  using  the  land.'  But  where  the  price  of  lands  so  taken  had 
been  secured  by  bond,  which  had  not  been  paid,  it  was  held  the 
company,  after  having  constructed  their  road,  could  not  be  re- 

*  Ex  parte  South  Wales  RaUw.  Co.,  6  Railw.  C.  151.  But  in  ex  parte  The 
Eastern  Counties  Railw.  Co.,  5  Railw.  C.  210,  the  money  was  ordered  to  be  paid 
to  the  company  upon  affidavits  showing  the  claim  settled.  The  land-owner  has 
no  lien  upon  the  money  deposited  for  costs,  but  the  company  are  entitled  to  the 
money  upon  paj-ment  of  the  sum  finally  settled  for  the  value  of  the  land.  The 
Great  Northern  Railw.  Co.  ex  parte,  5  Railw.  Cases,  269 ;  London  &  South 
W.  R.  ex  parte  Stevens,  5  Railw.  C.  437. 

The  bond  must  be  given  in  the  verj-  terms  of  the  statute.  Hosking  r.  Phil- 
lips, 3  Exch.  168,  opinion  of  Parke,  B.  And  it  will  make  no  difference  that  the 
obligee  is  a  gainer  by  the  deviation  from  the  statute.  Poynderr.  Great  Northern 
RaUw.  Co.,  16  Sim.  3 ;  s.  c.  5  Railw.  C.  196. 

But  where  the  company  choose  to  treat  for  the  claimant's  title  only,  it  is  suf- 
ficient if  the  bond  follow  the  statute,  so  far  as  it  applies  to  that  particular  case. 
Willey  F.  Southeastern  Railw.  Co.,  1  Hall  &  Twells,  56 ;  8.  c.  6  Railw.  Cas.  100. 
Opinion  of  Lord  Chancellor,  107,  108.  If  the  company  enter  by  consent  of  the 
tenant,  and  do  permanent  damage  to  the  land,  the  owner  may  nevertheless  obtain 
an  injunction  and  compel  them  to  make  a  deposit  and  give  a  bond  as  required  by 
the  statute.  Armstrong  ».  Waterford  &  Limerick  Railw.  Co.,  10  Irish  Eq.  60. 
If  there  is  a  mortgage  upon  land,  the  company  must  treat  with  the  mortgagee, 
or  provide  for  the  expense  of  reinvestment  for  his  benefit,  or  their  entry  will 
be  regarded  as  unlawful.  Ranken  r.  East  and  W^st  India  Docks  &  Bir.  J. 
Railw.,  12  Beavan,  298 ;  19  L.  J.  Ch.  153. 

Under  the  general  statutes,  in  many  of  the  American  states,  where  there  are 
conflicting  claims  to  the  land  required  by  a  railway  company,  the  company  are 
required  to  make  application  to  the  Court  of  Chancery,  and  deposit  the  money, 
in  bank,  subject  to  the  final  order  of  that  court.  In  such  case  it  has  been  con- 
sidered that  the  company  had  no  interest  in  the  controversy,  after  depositing 
the  money  for  the  price  of  the  land.  Uaswell  c.  Vermont  Central  Railw.,  23 
Vt.  228. 

*  Stamps  V.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railw.,  6  RaUw. 
C.  123. 

'  Cosens  v.  Bognor  Railw.  Law  Rep.,  1  Ch.  App.  694,  Turner,  L.  J.,  dis- 
senting.    But  see  ante,  %  73,  n.  7. 
•367 


§94. 


PROCEEDINGS   REQUISITE. 


367 


strained  by  injunction  from  continuing  to  occupy  the  land  until 
they  paid  the  purchase- money .^  And  this,  it  seems  to  us,  is  the 
correct  view  of  the  matter,  that  the  land-owner  by  accepting  secu- 
rity, or  even  the  promise  of  the  company,  for  land  damages,  and 
pressing  them  to  apply  the  land  to  the  purposes  of  constructing 
tlieir  works,  so  essentially  converted  its  nature,  as  to  lose  all  lien 
upon  it  for  the  price.® 

•SECTION   IL 

The  proceedings  requisite  to  enable  the  Company  to  enter  upon 

Land. 


1.  Provisionai  valuation  under  EngUah  stat- 

utes. 

2.  Irregularities  in  proceedings. 

8.  Penalty  for  irregular  entry  upon  lands. 


4.  Entry  ajler  verdict  estimating  damages, 

but  before  judgment. 

5.  Mode  of  assessing  damages  provided  in 

charter  not  superseded   by  subsequent 
general  railway  act. 


§  94.  1.  In  some  cases  specified  in  the  English  statute,  it  is 
necessary  to  have  a  provisional  valuation  of  land,  by  a  surveyor 
appointed  by  two  justices,  to  determine  the  amount  of  the  security 
to  be  given  before  the  entry  of  the  company  upon  the  land. 
Where  in  such  cases  the  justices  appointed  a  surveyor,  who  had 
all  along  acted  for  the  company,  to  appraise  the  value,  it  was 
held  no  sufficient  reason  to  mterfere,  by  injunction,  but  the  court 
reprobated  such  a  practice.  The  court  also  declined  to  interfere, 
by  injunction,  on  the  ground  that  the  sureties  on  the  bond  were 
the  company's  solicitors,  and  were  upon  similar  bonds  to  a  large 
amount.^ 

2.  In  the  same  case  it  was  considered  that  depositing  money 
and  executing  a  bond  to  tenants  in  common,  in  their  joint  names, 
was  irregular.^  It  was  held  that  the  proceedings  under  the  85th 
section  of  the  English  act,  to  obtain  possession  of  the  land  before 

«  Pell  r.  Northampton  &  Banbury  Railw.  Law  Rep.  2  Ch.  App.  100.  The 
lessee  is  a  proper  party  in  such  case.  Bishop  of  Winchester  v.  Midhants  Railw. 
Law  Rep.  5  £q.  19. 

*  Ante,  §  73,  and  notes. 

*  Langham  v.  Great  Northern  Railw.,  1  De  Gex  &  Smale,  486 ;  s.  c.  5  Railw. 
C.  265,  266.  This  case  was  in  favor  of  five  plaintiffs,  three  tenants  in  common, 
and  two  devisees  in  trust  for  the  sale  of  the  lands,  and  it  was  queried,  whether 
there  was  not  a  misjoinder. 

•868 


368  ENTRY  BEFORE  COMPENSATION  IS   ASSESSED.  CH.  XIII. 

amount  of  compensation  is  settled,  may  be  ex  partem  and  altogether 
without  notice.^ 

3.  The  English  statute  subjects  the  company  to  a  penalty  for 
entering  upon  lands  before  taking  the  steps  required  by  the 
*  statute,  but  provides,  that  the  penalty  shall  not  attach  to  any  com- 
pany, who  have  bona  fide  done  what  they  deemed  to  be  a  com- 
pliance with  the  statute.^ 

4.  If  one  enter  upon  lands  after  verdict  estimating  damages, 
but  before  judgment  on  the  verdict,  he  is  liable  in  trespass,  but 
only  for  the  actual  injury,  and  not  for  vindictive  or  exemplary 
damages.* 

6.  It  has  often  been  made  a  question  in  this  country,  where 
the  charter  of  a  railway  provides  one  mode  of  assessing  land 
damages,  and  a  subsequent  general  railway  act  provides  a  differ- 
ent mode,  which  the  company  are  bound  to  pursue.  It  has 
been  held  the  company  might  still  pursue  the  course  pointed  out 
in  their  charter.^ 

SECTION  III. 

Mode  of  obtaining   Compensation  under  the  Statute,  for  Lands 
taken,  or  injuriously  affected,  where  no  Compensation  is  offered. 

1.   Claimant  may  elect  arbitration  or  jury  1  2.  Method  (^procedure, 
trial.  I 

§  95.  1.  Where  land  is  taken  by  the  company,  or  injuriously 
affected  by  their  works,  and  no  compensation  has  been  offered 
by  the  company,  the  claimant  may,  where  the  amount  exceeds 

*  Bridges  v.  The  Wilts,  Somerset,  and  Weymouth  Railw.,  4  Railw.  C.  622. 
This  is  a  decision  of  the  Lord  Chancellor  affirming  that  of  the  Vice-Chan- 
ellor  of  England.  PojTider  v.  The  Great  N.  Railw.  Co.,  16  Sim.  3;  8.  c.  5 
Railw.  C.  196.  In  this  case  the  bond  was  held  to  be  informal,  for  being  made 
to  be  performed"  on  demand,"  the  Lord  Chancellor  refused  a  perpetual  injunc- 
tion, but  allowed  it  till  the  bond  was  corrected. 

*  Hutchinson  ».  The  Manchester,  Bury,  and  Rossendale  Railw.  Co.,  15  M.  & 
W.  314.  Pollock,  Ch.  B.,  thus  lays  down  the  rule  of  construction  of  this  statute : 
"  A  penal  enactment  ought  to  be  strictly  construed,  but  a  proviso,  which  has  the 
effect  of  saving  parties  from  the  consequences  of  a  penal  enactment,  should  be 
liberally  construed." 

*  Harvey  v.  Thomas,  10  Watts,  63. 

*  Visscher  v.  Hudson  River  Railw.,  15  Barbour,  37 ;  Hudson  River  Railw.  v. 
Cutwater,  3  Sandf.  Sup.  Ct.  689 ;  ante,  §  72,  n.  at  the  end. 

♦869 


§96. 


THE  ONUS  OF  CARRYING  FORWARD  PROCEEDINGS. 


369 


fifty  pounds,  have  the  same  assessed,  either  by  arbitrators  or  a 
jury,  at  his  election. 

2.  If  he  desire  to  have  the  same  settled  by  arbitration,  he 
shall  give  notice  to  the  company  of  his  claim,  stating  his  interest 
in  the  land  and  the  amount  he  demands,  and  unless  the  com- 
pany within  twenty-one  days  enter  into  a  written  agreement  to 
*pay  the  amount  claimed,  the  same  shall  be  settled  by  arbitration, 
in  the  manner  pointed  out  in  the  statute ;  or,  if  the  party  desire 
to  have  the  same  settled  by  a  jury,  he  shall  so  state  in  his  notice 
of  claim,  and  unless  the  company  agree  to  pay  the  sum  claimed, 
in  the  manner  stated  above,  they  shall  within  twenty-one  days 
issue  their  warrant  to  the  sherifi"  to  summon  a  jury  to  settle  the 
same,  in  the  manner  pointed  out  in  the  act,  and  in  default  there- 
of they  shall  be  liable  to  pay  the  amount  claimed,  to  be  recov- 
ered in  the  superior  courts.^ 


SECTION   IV. 


The  Onus  of  carrying  forward  Proceedings. 


8.  Proceedings  cannot  be  had  unless  actual 
possession  is  taken  or  injury  done. 


1.  Rests  upon  claimant  afier  company  have 

taken  possession. 

2.  Miscellaneous  provisions. 

§  96.  1.  It  has  been  held,  under  the  English  statutes,  that 
after  the  company  have  taken  possession  of  land,  either  by  right 
or  by  wrong,  the  onus  of  taking  the  initiative  steps  to  have  the 
purchase-money  or  compensation  assessed,  lies  upon  the  claim- 
ant.^ It  was  considered  in  this  case,  that  the  remedy  under 
the  68th  section  ^  applied  to  all  cases  where  the  company  took 
possession  of  the  land  under  the  85th  section.^ 

2.  But  if  questions  in  equity  are  pending,  they  must  be  dis- 

»  8  &  9  Vict.  ch.  18,  §  68. 

>  Adams  v.  The  London  &  Blackwall  Railw.  Co.,  2  Hall  &  Twella,  285 ;  8.  c. 
6  Railw.  C.  271,  282.  The  opinion  of  the  Lord  Chancellor  on  appeal.  It  wa« 
also  considered,  in  this  case,  that  if  the  company  failed  to  perform  their  dutiea 
in  the  proceedings,  the  more  appropriate  remedy  was  by  mandamus,  and  not  by 
application  to  the  courts  of  equity  for  decree  of  specific  performance. 

«  See  ante,  §  96. 

'  See  ante,  §§  93,  94.  Doe  d.  Armistead  v.  North  Staffordshire  Railw.  Co., 
16  Q.  B.  626 ;  8.  c.  4  Eng.  L.  &  Eq.  216. 

24  •870 


370 


ENTRY  BEFORE   COMPENSATION  IS   ASSESSED. 


CH.  xni. 


posed  of  before  the  common-law  remedy  can  be  pursued.*  This 
was  a  case  where  the  determination  of  the  matters  pending  in 
equity  was  necessary  to  enable  the  parties  to  know  what  was 
to  be  submitted  to  the  assessors.*  In  proceedings  under  the  68th 
*  section,  it  is  not  necessary  for  the  company  to  give  the  claimant 
notice  of  their  issuing  a  warrant  to  the  sheriff  to  summon  a  jury, 
ten  days  before  they  issue  it,  as  is  required  in  proceedings  under 
the  other  sections.^  It  was  held,  that  if  the  claimant  recover 
a  larger  sum  than  was  offered  by  the  company,  he  is  entitled 
to  recover  costs  under  section  68,  as  well  as  under  other  sections.^ 
3.  It  is  considered  that  the  land  must  be  actually  taken,  or 
actually  injuriously  affected  by  the  company,  before  the  claimant 
can  take  proceedings  under  section  68.  Hence  if  the  company 
give  notice  of  their  intention  to  take  lands,  but  do  not  afterwards 
actually  take  possession  or  injuriously  affect  them,  the  claimant 
can  only  proceed  by  mandamus.  It  has  been  decided  that  the 
claimant  in  such  case  cannot  make  a  demand  of  a  certain  sum, 
and  then  recover  it,  if  the  company  do  not  issue  their  warrant  to 
the  sheriff.^ 

SECTION  V. 


Equity  will  not  interfere,  hy  Injunction,  because  Lands  are  being 
Injuriously  Affected,  without  notice  to  treat,  or  previous  com- 
pensation. 


1.  Claimant  must  wait  until  works  are  com- 

pleted, 

2.  Even  if  appearance  of  land  uiiU  be  great- 

ly altered. 


3.  How  far  equity  interferes    where   legal 

claim  of  party  is  denied. 

4.  Where  a  special  mode  of  compensation 

has  been  agreed  upon. 


§  97.  1.  It  is  said  courts  of  equity  will  not  interfere  by  in- 
junction, because  lands   are  being  injuriously  affected    by  the 

*  Southwestern  Railw.  Co.  v.  Coward,  5  Railw.  C.  703 ;  s.  c.  1  Hall  &  Twells, 
877,  note. 

»  Railstone  v.  The  York,  Newcastle,  &  B.  Railw.  Co.,  15  Ad.  &  Ellis  (n.  s.), 
404.  This  case  is  somewhat  questioned  in  Richardson  v.  Southeastern  RaUw., 
11  C.  B.  154 ;  8.  c.  6  Eng.  L.  &  Eq,  426.  But  in  this  same  case,  in  error,  in 
the  Exchequer  Chamber,  9  Eng.  L.  &  Eq.  464,  the  question  as  to  costs  is  affirmed, 
and  the  court  say,  it  is  not  necessary  to  say  whether  they  consider  the  case  of 
Railstone  v.  The  York,  N.  &  B.  Railw.  Co.  sound  or  not,  as  it  does  not  neces- 
sarily affect  the  question  before  the  court. 

•  Burkinshaw  v.  Birmingham  &  Oxford  Jimction  Railw.  Co.,  5  Excheq.  475. 

*371 


§  97.         EQUITY  WILL  NOT  INTERFERE  BY  INJUNCTION,   ETC.  371 

company's  works,  and  no  notice  to  treat  or  previous  compensa- 
tion has  been  made,  if  it  appears  the  company  are  only  exercis- 
ing their  statutory  powers.  The  claimant  should  allow  the 
*  works  to  be  completed,  and  then  take  his  remedy  under  the 
statute.^ 

2.  It  was  objected,  in  one  case,  that  the  company  would  be 
likely  to  greatly  alter  the  appearance  of  the  land  which  they  had 
entered  upon,  and  that  a  jury  could  not  understandingly  assess 
the  value  after  the  damages  were  sustained,  but  the  court  said 
it  was  no  ground  for  the  interference  of  a  court  of  equity .^ 

3.  The  courts  in  England  hold,  that  in  this  class  of  claims  it 
is  proper  to  wait  till  the  full  extent  of  the  injury  is  known.* 
And  equity  will  not  enjoin  the  party  from  proceeding  under  the 
statute,  in  a  case  where  it  is  alleged  that  he  has  no  legal  claim 
under  the  statute,*  as  in  such  case  the  company  may  defend 
against  the  award,  and  this  seems  to  be  the  course  finally  deter- 
mined upon.  But  some  actions  at  law  have  been  brought  and  sus- 
tained to  try  the  right,  by  order  of  the  courts  of  equity.^ 

4.  So,  too,  where  the  bill  alleges  that  the  party  has  upon  con- 
sideration agreed  to  receive  compensation  in  a  particular  mode, 
equity  will  enjoin  him  from  taking  proceedings  under  the 
statute.® 

»  8  &  9  Vict.  ch.  18,  §  68. 

'  Langham  v.  Great  Northern  Railw.,  1  De  G.  &  Sm.  486 ;  8.  c.  6  Railw.  C. 
263.  The  counsel  for  defendant  not  called  to  answer  this  portion  of  plaintiff  ^8 
argument. 

=•  Hutton  c.  The  London  &  Southw.  Railw.  Co.,  7  Hare,  269. 

*  East  &  West  India  Docks  &  Bir.  J.  Kailw.  Co.  p.  Gattke,  3  Mac.  &  Gor. 
166 ;  8.  c.  3  Eng.  L.  &  Eq.  69 ;  South  Staffordshire  Railw.  Co.  v.  Hall,  1  Sim. 
N.  S.  373 ;  8.  c.  id.  106.  In  this  last  case,  the  opinion  of  Lord  Cranworth  seems 
to  overrule  that  of  Lord  CotUnham  in  The  London  &  N.  W.  Railw.  Co.  v.  Smith, 
1  Hall  &  Twells,  364 ;  8.  c.  6  Railw.  C.  716.  The  Sutton  Harbor  Improvement 
Co.  r.  Hitchins,  15  Beav.  161 ;  8.  c.  9  Eng.  L.  &  Eq.  41 ;  The  London  &  N.  W. 
Railw.  Co.  r.  Bradley,  3  Mac.  &  Gor.  366;  8.  c.  6  Railw.  C.  651,  See  also 
Monchet  v.  G.  W.  Railw.  Co.,  1  Railw.  C.  667.  But  see  the  case  of  L.  &  Y. 
Railw.  r.  Evans,  14  Beav.  629 ;  8.  c.  19  Eng.  L.  «&  Eq.  296,  where  the  case  of 
L.  &  N.  W.  Railw.  r.  Smith  is  still  further  questioned. 

»  Glover  c.  The  North  Staffordshire  Railw.  Co.,  16  Q.  B.  912;  8.  c.  6  Eng. 
L.  &  Eq.  336. 

•  Duke  of  Norfolk  v.  Tennant,  9  Hare,  746 ;  8.  c.  10  Eng.  L.  &  Eq.  237. 

*372 


372  ENTRY  BEFORE  COMPENSATION   IS  ASSESSED.  CH.  XHI. 


♦SECTION  VI. 

Sheriff  ^8  Jury,  or  Arbitrator,  cannot  determine  the  Question  of 
Right  in  the  Claimant,  but  only  the  amount  of  Damages. 

1.  Later  English  decisions  sustain  this  view.   I  6.   Plaintiff  will  recover  damages  assessed 
%  8.   Statement  of  recent  case.  if  he  suffered  any  legal  injury. 

4.   Inmost  American  states  assessment  is  final.  ■ 

§  98.  1.  There  has  been  some  contrariety  of  opinion  among 
the  English  judges  in  regard  to  the  right  of  the  company,  before 
the  sheriflTs  jury,  to  raise  the  question  of  the  claimant's  right  to 
recover  any  compensation,  under  the  sixty-eighth  section,  where 
lands  are  taken  or  alleged  to  be  injuriously  affected  by  the  works 
of  the  company ;  and  whether  the  jury  can  go  into  any  inquiry 
beyond  that  of  the  value  of  the  claimant's  interest  in  the  land. 
The  latest  decisions  upon  this  point  hold,  that  the  jury  is  con- 
fined to  the  question  of  the  amount  of  compensation.^ 

2.  In  the  very  latest  English  case  upon  this  subject,^  the 
judges  of  the  Court  of  Queen's  Bench  differed  in  opinion,  and 
delivered  opinions  seriatim.  Coleridge,  J.,  and  Lord  Campbell, 
Ch.  J.,  and  Wightman,  J.,  holding,  that  the  jury  had  nothmg 
before  them  but  the  quantum  of  damages,  and  that  whether  the 
company  declined  to  issue  their  warrant  to  the  sheriff,  or  did 
issue  it  in  both  cases,  the  right  to  recover  any  damage  on  ac- 
count of  a  claim  for  the  injuriously  affecting  of  land,  was  to  be 
tiied  upon  the  action,  to  recover  the  amount  assessed,  in  the 
courts.  The  proceedings  under  the  statute  were  held,  by  the 
majority  of  the  court,  to  be  merely  for  the  purpose  of  fixing 
the  amount  of  the  claim.  If,  indeed,  the  company  stood  still  upon 
the  question  of  right,  they  were  liable,  in  the  event  of  the  claim- 
ant's recovery,  for  the  full  amount  of  the  claim  made ;  but  if 
they  proceeded  to   a  hearing  before  the  arbitrator  or  a  jury, 

*  Regina  r.  Metropolitan  Comm.  of  Sewers,  1  £1.  &  Bl.  694 ;  s.  c.  18  Eng. 
L.  &  Eq.  213. 

*  Regina  v.  The  London  &  Northwestern  Railw.  Co.,  3  El.  &  Bl.  443 ;  s.  c. 
25  Eng.  L.  &  Eq.  37.  And  the  same  rule  is  extended  to  the  finding  of  arbi- 
trators that  premises  were  injuriously  aflfected  by  the  narrowing  of  a  way  of 
approach,  by  means  of  the  company's  embankment ;  th6  award  is  not  conclusive 
upon  the  point  of  the  injurious  effect.  Beckett  v.  Midland  Railw.  L.  R.  1  C.  P. 
241. 

•373 


§  98.  CANNOT   DETERMINE  TITLE :    ONLY  DAMAGES.  373 

whichever  course  the  claimant  should  elect,  they  might  not  only 
contest  the  aniount  tliere,  but  the  right  of  any  recovery  in  the 
action  which  the  claimant  was  compelled  to  bring,  to  obtain  *  ex- 
ecution against  the  company,  but  that  it  was  improper  to  go  into 
any  inquiry  before  the  arbitrator  or  the  jury,  in  regard  to  the 
right  to  recover  any  thing,  inasmuch  as  this  tended  improperly 
to  embarrass  the  mind  of  the  triers  in  regard  to  the  damages. 
And  in  this  case,  where  the  jury  went  into  the  question  of  right, 
and  determined  the  claimant  had  no  right,  but  added,  if  he  had 
such  right  his  claim  should  be  valued  at  £150,  the  majority 
of  the  court  determined  that  the  former  part  of  the  verdict  could 
not  be  rejected,  and  let  the  verdict  stand  as  a  good  finding  of 
the  sum  named,  which  last  point  seems  rather  too  refined  for 
common  apprehension,  even  after  reading  attentively  the  elab- 
orate opinion  of  the  majority  of  the  court  by  Chleridge,  J. 

3.  Mr.  Justice  Erie  dissented  from  the  principal  decision  of 
the  court,  and  held  the  verdict  good  in  all  respects.  But  this 
case  must  be  regarded  as  settling  the  question  of  the  right  of  the 
jury  to  pass  upon  the  claim  beyond  its  mere  amount,  at  least 
under  the  English  statutes. 

4.  Li  most  of  the  American  states  the  assessment  of  land 
damages,  by  whatever  tribunal,  becomes  final,  unless  appealed 
from,  and  execution  issues  without  resort  to  a  future  action,  or, 
if  an  action  is  necessary  upon  awards  of  arbitrators,  this  will  not 
justify  a  re-examination  of  the  case,  either  upon  the  question  of 
title  or  amount  of  damages.  But  in  some  of  the  states,  the 
proceedings  are  similar  to  those  above  named  in  the  English 
courts.' 

5.  And  under  the  English  statutes,  where  the  claim  is  for  in- 
juriously affecting  land,  the  plaintiff  must  recover  the  entire 
amount  of  damages  assessed  to  him  for  land  taken  by  a  railway, 
unless  the  defendant's  pleas  show  that  he  had  no  right  to  recov- 
er *  to  any  extent. 

»  Ante,  §  72. 

*  Mortimer  c.  South  Walea  Raiiw.  Co.,  6  Jur.  N.  S.  784 ;  s.  c.  1  Ellis  &  Ellis, 
376. 

♦874 


374 


ENTEY  BEFORE   COMPENSATION   IS  ASSESSED. 


CH.  xm. 


•SECTION    VII. 


The  extent  of  Compensation  to  Land-owners,  and  other  Incidents 
by  the  English  Statutes. 


1.  Liberal  compensation  allowed. 

2.  Decisions  under  English  statutes. 

3.  Limit   of  period  far    estimating   dam- 

ages. 


Whether  claim  for  damages  passes  to  the 
devisee  or  executor. 

Vendor  generally  entitled  to  damages  ac- 
cruing during  his  time. 


§99.  1.  In  one  of  the  early  cases  ^  upon  this  subject,  Lord 
Denman,  Ch.  J.  said,  we  think  it  not  unfit  to  premise,  "  that  where 
such  large  powers  are  intrusted  to  a  company  to  carry  their  works 
through  so  great  an  extent  of  country,  without  the  consent  of  the 
owners  and  occupiers  of  land  through  which  they  are  to  pass,  it  is 
reasonable  and  just  that  any  injury  to  property,  which  can  be 
shown  to  arise  from  the  prosecution  of  those  works,  should 
be  fairly  compensated  to  the  party  sustaining  it."  But  this  must  be 
received  under  some  limitations.  For  it  is  supposable,  that  pos- 
sible remote  injuries  may  accrue  to  property,  of  a  general  and 
public  character,  which  it  was  never  intended  to  compensate. 

2.  Some  points  arising  under  the  English  statute  may  be  here 
referred  to.  It  was  held,  that  where  the  powers  conferred  upon  a 
canal  company  were  unlimited  as  to  time,  no  limitation  as  to  their 
exercise  could  be  assigned,  so  as  to  require  their  exercise  within  a 
reasonable  time,^  and,  consequently  that  the  works  might  be  re- 
sumed at  any  period.^  Future  damages  to  accrue  to  land-owners 
cannot  be  estimated  properly  ^  until  after  the  completion  of  the 
works.2  The  compensation  when  given,  fixes  *  the  rights  of  the 
parties,  upon  the  basis  of  its  estimation,  as,  if  the  estimation  is 
had  upon  the  footing  of  an  entire  severance  of  the  land,  the  land- 
owner has  no  right  to  cross  the  track.*    And  where  this  did  not 

'  Reg.  V.  Eastern  Counties  RaUw.,  2  Ad.  &  EUis  (Q.  B),  347. 

•  Thicknesse  v.  The  Lancaster  Canal  Co.,  4  M.  &  W.  472.  Lord  Abinger, 
Ch.  B.  intimates  an  opinion  here,  that  possibly,  after  a  long  delay  of  the  com- 
pany to  proceed  with  their  works,  and  the  erection  of  fences  and  buildings,  by 
the  land-owners,  in  faith  of  the  abandonment  of  the  works  by  the  company,  a 
court  of  equity  might  restrain  the  company  frova.  completing  their  enterprise, 
notwithstanding  the  grant  of  power  to  do  so,  by  parliament ;  but  a  court  of  law 
could  do  no  such  thing,     pp.  490,  491. 

»  Lee  r.  MUner,  2  M.  «&  W.  824. 

«  Manning  r.  The  Eastern  Counties  Bailw.,  12  M.  &  W.  237.  But  unless  it 
♦  375,  376 


§  99.  EXTENT  OF  COMPENSATION  TO   LAND-OWNEES.  375 

sufficiently  appear,  by  the  record  of  the  verdict,  that  not  having 
been  made,  held  that  parol  evidence  might  be  given  of  the  finding, 
and  of  the  grounds  upon  which  it  proceeded.* 

3.  Where  consequential  damages  to  existing  works,  by  the  erec- 
tion of  new  ones,  are  required  to  be  compensated,  the  period  for 
estimation  is  limited  to  the  yearly  value  of  the  works,  antecedent 
to  the  passing  of  the  act.^ 

4.  The  devisee  is  entitled  to  claim  consequential  damages  and 
not  the  executor.^  But  where  one  contracted  to  sell  freehold 
estates  and  died  before  the  money  was  paid ;  under  the  London 
Bridge  Improvement  Act,  it  was  held  the  money  should  go  to  the 
executor.^  But  the  cases  are  not  uniform  upon  this  subject,  and 
the  usual  course  seems  to  be,  that  the  money  for  consequential 
damage  goes  to  the  party  interested  in  the  inheritance,  or  else  is 
divided  according  to  the  interest  of  the  several  estates.^  In  one 
case  it  was  held,  that  the  vendee  was  entitled  to  compensation,  which 
accrued  during  the  time  of  the  vendor's  title,  but  not  liquidated 
till  after  the  conveyance.^ 

5.  But  in  general  the  vendor  is  entitled  to  land  damages  ac- 
cruing during  his  time,  although  not  collected,  and  often  where 
the  works  are  not  completed  till  after  the  conveyance.^*^  The  pre- 
sumption is,  if  the  jury  assess  compensation  to  one  person,  that  it 
is  only  for  his  interest  in  the  premises.^^ 

appeared  b^  the  record  upon  what  basis  the  assessment  was  made,  it  seems 
questionable,  whether,  upon  general  principles,  oral  evidence  is  admissible  to 
show  that  basis.     Ante,  §  74,  n.  7. 

•  Manning  v.  The  Commissioner  under  the  W.  I.  Dock  Act,  9  East,  165. 

•  The  King  c.  The  Comm.  under  London  Dock  Acts,  12  East,  477. 

'  Ex  parte  Hawkins,  3  Railw.  C.  605,  and  note.  No  other  party  seems  to 
have  had  a  counter  interest  in  this  case. 

»  The  Midland  Counties  Railw.  Co.  ».  Oswin,  1  Coll.  C.  C.  74,  80 ;  8.  c.  8 
Eailw.  C.  497 ;  Danforth  r.  Smith,  23  Vt.  247. 

•  King  r.  Witham  Nav,  Co.,  3  B.  &  Aid.  454. 
"  Rand  ».  Townshend,  26  Vt.  670. 

"  Bex  V.  Nottingham  Old  Waterworks,  6  Ad.  &  Ellis.  355. 


376 


ENTRY  BEFORE   COMPENSATION  IS  ASSESSED. 


CH.  xni. 


•SECTION  VIII. 


Right  to  temporary  use  of  Land  to  enoMe  the  Company  to  make 
Erections  upon  other  Lands. 


1.  Right  to  pass  another  railxcay  hy  a  bridge 

gives  temporary  use  of  their  land,  but  no 
right  to  build  abutments  upon  it. 

2.  Right  to  construct  a  bridge  across  a  canal 


gives    right    of  building    a    temporary 
bridge. 
8.   And  if  thus  erected  hon&&de  may  be  used 
for  other  purposes. 


§  100.  1.  Where  one  railway  act  gives  the  company  power  to 
pass  another  railway,  by  means  of  a  bridge,  provided  the  width 
between  the  abutments  of  the  bridge  is  not  less  than  twenty-six 
feet,  and  at  the  points  where  the  bridge  is  to  be  built,  the  land  of 
the  second  company  is  forty-seven  feet  wide,  the  first  company 
have  no  right  to  build  the  abutments  of  their  bridge  upon  the  land 
of  the  second  company,  but  having  purchased  adjoining  land  for 
that  purpose,  they  have  a  right  at  law  to  the  temporary  use  of  the 
land  of  the  second  company,  for  the  purpose  of  building,  and  this 
right  was  in  efiect  secured  to  the  first  company  by  an  injunction 
out  of  chancery.^ 

2.  So,  too,  where  a  railway  company  had  permission  to  carry 
their  road  over  a  canal,  by  means  of  a  bridge  of  a  given  descrip- 
tion, it  was  held  that  they  might,  as  incident  to  the  right  of 
erecting  the  bridge,  make  a  temporary  bridge  over  the  canal, 
supported  partly  on  piles  driven  into  the  bed  of  the  canal,  to 
enable  them  to  transport  earth  across  the  canal  to  build  the 
necessary  embankment,  in  the  construction  of  the  permanent 
bridge.'^ 

3.  And  such  a  temporary  bridge  having  been  erected  for  the 
bona  fide  purpose  of  building  the  permanent  bridge,  might  also  be 
used  for  other  purposes,  for  which  alone  it  could  not  have  been 
erected.* 


'  Great  North  of  England,  Clarence  &  Hartlepool  Junction  Railw.  r.  The 
Clarence  Railw.,  1  Collyer,  507. 

•  London  &  Birmingham  Railw.  r.  Grand  Junction  Canal  Co.,  1  Railw.  Cas. 
224. 

3  Priestley  v.  The  Manchester  &  Leeds  Railw.,  4  To:  &  Col.,  Ex.,  63 ;  s.  c. 
2  RaUw.  C.  134. 

•377 


§  101  a.  DISPOSITION   OF  SUPERFLUOUS   LANDS.  377 


•SECTION  IX. 

Reservaiiona  to  Land-ovmers  to  huUd  private  Railway  across  pub- 
lic Railway. 

§  101.  Where  the  special  act  of  a  railway  company  provided, 
that  nothing  in  the  act  contained  shall  prevent  any  owner  or 
occupier  of  any  ground  through  which  the  railway  may  pass  from 
carrying,  at  his  or  their  own  expense,  any  railway,  or  other  ro'ad, 
any  cut,  or  canal  which  he  or  they  may  lawfully  make  in  their  own 
land,  across  the  said  main  railway,  within  the  lands  of  such  owner 
or  occupier,  it  was  held,  that  this  provision  was  not  confined  to 
the  owners  or  occupiers  of  such  land,  at  the  time,  but  was  intended 
to  apply  to  all  future  time,  so  long  as  such  principal  railway  shall 
continue,  and  extended  to  all  persons  owning  or  occupying  lands 
adjoining  the  railway,  upon  opposite  sides,  whenever  the  title  was 
acquired,  even  where  they  purchased  the  land  upon  opposite  sides 
at  diflferent  times.^ 

SECTION   X. 
Disposition  of  Superjlttous  Lands. 

1.    Vest  in  adjmning  ovoner  unleu  disposed  of  I  2.   Former  oumer  not  excluded;  effect  of  cot- 
in  ten  years.  I  tageinjidd. 

§  101  a.  1.  By  the  English  statute  railways  are  required,  where 
they  have  acquired  more  lands  under  their  powers  than  are  re- 
quired for  their  purposes,  to  sell  the  same  within  ten  years  from 
the  passing  of  the  act,  and  that  superfluous  lands,  then  remaining 
unsold,  should  vest  in  the  owners  of  adjoining  lands,  in  proportion 
to  the  amount  of  their  lands  respectively  adjoining  the  same. 
That  time  was  by  a  subsequent  act  extended  five  years  more.  It 
has  been  held  that  the  act  embraced  lands,  the  reversion  of  which 
had  been  bought  by  the  company ;  and  also  that  the  superfluous 
land  was  to  be  divided  among  the  owners  of  the  adjoining  property, 

»  Monkland  &  Kir.  Railw.  v.  Dixon,  1  Bell  Ap.  Caa.  347 ;  8.  c.  8  Railw.  C. 
273.  The  Court  here  (IL  of  L.)  denied  an  interdict  against  such  owner  or 
occupier  prolonging  his  railway  for  the  benefit  of  any  persons  with  whom  he 
might  make  an  agreement  for  that  purpose. 

•378 


378  ENTRY   BEFORE   COMPENSATION  IS   ASSESSED.  CH.  XHI. 

in  proportion  to  the  frontage  of  each,  meaning  by  that  the  length 
of  the  line  of  contact,  without  reference  to  the  extent  of  the  land 
in  other  directions,  and  that  the  later  act  did  not  defeat  titles 
already  vested  under  the  former  act.^ 

2.  It  has  also  been  held  that  the  former  owner  of  the  lands, 
from  which  they  were  severed,  is  entitled  to  share  in  the  same  un- 
der the  statute,  and  that  the  fact  that  a  cottage  stands  in  the  field, 
part  of  such  superfluous  lands,  will  not  bring  them  within  the 
exception  of  lands  built  on  or  used  for  building  purposes.^ 

1  Moody  V.  Corbett,  Law  Rep.  1  Q.  B.  510. 

*  Carington  r.  Wycomb  Eailw.  Law  Kep.  2  Eq.  825. 


§  102,  103.     BY  JUSTICES   OP  THE   PEACE.  —  BY  SURVEYORS. 


379 


•CHAPTER    XIV. 

THE   MODE  OP   ASSESSING   COMPENSATION   UNDER  THE   ENGLISH 

STATUTES. 

SECTION  I. 

By  Justices  of  the  Peace. 


1.  Where  compenaation  claimed  does  not  ex- 

ceed £00. 

2.  Mode  of  enforcing  ctward. 


Value  of  land  and  injury  accruing  from 
ieverance  to  be  considered. 


§  102.  1.  By  the  English  statute,  where  the  compensatiou 
claimed  shall  not  exceed  £50,  the  same  is  to  be  settled  by  two 
justices.  So,  also,  as  to  damages  claimed  for  lands  injuriously 
affected.  So,  too,  if  the  company  enter  upon  any  private  road  or 
way.  And  justices  may  fix  the  compensation,  in  certain  cases, 
for  the  temporary  use  of  land  ;  and  the  compensation  to  tenants 
for  a  year,  or  from  year  to  year.  They  may  apportion  the  rent, 
too,  where  the  whole  land  is  not  taken.  In  some  of  these  cases 
their  jurisdiction  extends  beyond  .£50. 

2.  The  mode  of  enforcing  payment  of  money  awarded  by  such 
justices,  is  to  obtain  an  order,  which  may  be  enforced  by  distress, 
upon  the  goods  and  chattels  of  the  party  liable.  The  certiorari  is 
taken  away  in  such  cases,  but  an  order  of  such  justices  may  still 
be  brought  up,  to  be  quashed,  for  want  of  jurisdiction.^ 

3.  The  justices  are  to  take  into  consideration  the  value  of  the 
land,  and  any  injury  which  may  accrue  from  severance. 


•SECTION  II. 

By  Surveyors. 

§  103.  The  assessment  of  compensation  by  surveyors,  under 
the  English  statutes,  is  merely  provisional  in  most  cases,  as  where 
the  party  is  out  of  the  kingdom,  or  cannot  be  found,  two  justices 

*  See  the  subject  disaxaaed  post,  §§  202,  203. 

*  879,  380 


880 


MODE   OF   ASSESSING   COMPENSATION. 


CH.  XIV. 


are  required  to  nominate  an  able  practical  surveyor,  who  is, 
under  certain  solemnities,  required  to  make  a  valuation  of  the 
land  taken  or  injuriously  affected,  the  amount  of  which  the  com- 
pany are  required  to  deposit- in  the  bank,  before  proceeding  with 
the  works.  And  if  such  party  be  dissatisfied  with  the  sum  thus 
deposited,  he  may,  before  applying  to  Chancery  for  the  money, 
require  the  question  to  be  submitted  to  arbitration,  as  in  other 
cases  of  disputed  compensation.  Surveyors  are  required  to  as- 
sess damages  for  severance  of  land,  the  same  as  justices  of  the 
peace  .^ 

SECTION    III. 
By  Arbitration. 


7.  And  land-cumers    maf  recover   without 

waiting  for  selectmen  to  act. 

8.  Company  estopped  in  such  case  from  de- 

nying that  road  uxzs  constructed  by  their 
servants.  Embankments  part  of  the 
railway. 

9.  Finality  qfaivard. 

10.  May   employ    experts.      Damages    em- 

braced. 

11.  Construction  of  general  award. 


1.  May  be  claimed  in  cases  exceeding  juris- 

diction of  justices  of  the  peace. 

2.  How  made  compulsory. 
8.    What  form  of  notice  is  sufficient. 
n.  6.  Analogous  American  cases. 

4.  Arbitrator's  power  limited  to  award  of  pe- 

cuniary compensation. 

5.  Where  land-owner  gives  no  notice,  com- 

pany may  treat  it  as  case  of  disputed 
compensation. 

6.  Similar  rule  under  Massachusetts  statute 

regarding  alteration  of  highways. 

§  104.  1.  By  the  English  statutes,  if  the  amount  of  compensa- 
tion claimed  exceed  the  jurisdiction  of  two  justices,  any  party 
claiming  compensation  may  compel  an  arbitration,  by  taking  *  the 
requisite  steps  in  due  time.  Unless  both  parties  concur  in  the 
same  arbitrator,  each  party,  upon  the  request  of  the  other,  is  re- 
quired to  name  one.  The  appointment  of  the  arbitrator  is  to  be 
under  the  hand  of  the  party,  and  delivered  to  the  arbitrator,  and  is 
to  be  deemed  a  submission  by  such  party.  Such  submission  is 
irrevocable,  even  by  the  death  of  the  party. 

2.  If  either  party  neglect,  for  fourteen  days,  after  request  by 
the  other  party  to  name  an  arbitrator,  one  may  be  named  by 
the  other  party,  who  shall  decide  the  controversy.  If  either 
party  name  an  arbitrator  who  is  incompetent,  the  other  party 
must  retire  from  the  arbitration,  or  he  will  be  bound  by  his  ac- 

>  Hodges  on  Railways,  250,  251,  252. 
♦881 


§  104.  BT  ARBITRATION.  381 

quiescence.^  The  secretary  of  a  railway  company,  by  the  Eng- 
lish statutes,  would  seem  to  have  power  to  bind  the  company, 
by  signing  the  submission,  whether  the  arbitration  is  compulsory 
or  not.^ 

8.  It  was  held  that  the  appointment  of  an  arbitrator  or  referee 
implied  the  notification  of  such  appointment  to  the  other  party 
within  the  time  limited  in  the  submission,  or  the  doings  of  such 
referee  were  void.*  And  not  only  so,  but  the  notice  must  be  ex- 
plicit. It  is  not  sufficient  to  say,  "  Take  notice,  that  it  is  my  in- 
tention to  nominate  S.  M.,"  notwithstanding  it  was  added,  "  if  the 
company  fail  to  appoint,  I  the  said  T.  B.  will  appoint  S.  M.  to 
act  on  behalf  of  both  parties."*  And  in  this  case  it  is  said,  it 
would  seem  that  the  appointment  by  the  claimant  of  an  arbitrator 
to  act  for  both  parties,  is  not  valid,  unless  he  has  previously 
appointed  an  arbitrator,  on  his  part,  and  notified  such  appointment 
to  the  company.  There  should  be  two  separate  appointments, 
although  it  may  be  of  the  same  person,  it  is  here  suggested.^ 

*  4.  The  arbitrator  has  no  power  beyond  the  awarding  of  a 
pecuniary  compensation  for  the  land  taken  by  the  company,  and 
cannot  direct  what  right  of  way  shall  remain  in  the  tenant  to  the 
portion  of  laud  not  taken. ^  Nor  can  he  apportion  the  rent  to  the 
tenant.^ 

5.  If  the  land-owner  gives  no  notice  of  claim,  in  reply  to  the 
notice  to  treat,  the  company  may  treat  it  as  a  case  of  disputed 
compensation.'^  If  the  compensation  claimed  be  less  than  50Z.,  it 
may  be  settled  by  two  justices.  But  if  more  than  bOl.  be  claimed, 
or  offered,  and  the  claimant  desire  to  have  it  settled  by  arbitra- 

»  Inre  Eliott,  2  De  G.  &  Sm.  17. 

"  Collins  r.  South  Staffordshire  Railw.  Co.,  7  Exch.  6;    8.  c.  21  Law  J. 
(Ex.),  247 ;  8.  c.  12  Eng.  L.  &  Eq.  665. 
»  Tew  r.  Harris,  11  Q.  B.  7. 

*  Bradley  r.  London  &  N.  W.  Railw.  Co.,  6  Exch.  769. 

'  But  where  both  parties  petition  for  a  jury  to  revise  the  damages,  one  war- 
rant is  sufficient.  Davidson  t.  Boston  &  Maine  Railw.,  3  Cush.  91.  And  if  two 
warrants  are  issued,  the  sheriff  should  execute,  and  return  them  as  one.  lb. 
And  where  there  are  several  applications,  which  by  statute  are  to  be  determined 
by  one  jurj',  the  proper  mode  is  to  issue  but  one  warrant  to  the  sheriff,  but  if 
several  warrants  issue  irregularly,  yet  if  the  officer  summon  a  single  jury,  who 
hear  and  determine  each  case,  their  verdicts  will  not  be  set  aside  for  such 
irregularity.     Wyman  r.  Lexington  &  West  Cambridge  Railw.,  13  Met.  316. 

*  Ware  r.  Regent's  Canal  Co.,  9  Exch.  395 ;  8.  c.  25  Eng.  L.  &  Eq.  444. 
'  8  &  9  Vict.  ch.  18,  §§  21,  22,  23,  38. 

•382 


382  MODE   OP  ASSESSING  COMPENSATION.  CH.  XIV. 

tion,  it  is  at  his  option,  and  he  must  give  notice  of  such  desire 
before  the  company  issue  their  warrant  to  the  sheriflf  to  summon 
a  jury  to  assess  the  compensation,  which  they  may  do  in  ten 
days  after  giving  the  claimant  notice  that  they  shall  do  so,  unless 
in  the  mean  time  he  elect  to  have  the  matter  settled  by  arbitration  J 

6.  And  under  the  Massachusetts  statute,  giving  railways  the 
right  to  alter  highways,  upon  giving  notice  to  the  selectmen  of  the 
towns  where  such  highways  are  situated,  and  conforming  to  their 
requirements,  or  the  decision  of  the  county  commissioners,  in  re- 
gard to  the  alteration  of  the  highway,  it  was  held,  that  if  the  select- 
men give  no  notice  to  the  company,  as  to  what  alterations  they 
require,  the  presumption  is,  that  they  require  none,  but  leave  the 
whole  matter  to  the  company. 

7.  And  to  entitle  adjoining  land-owners  to  recover  damages  of 
the  railway  under  the  statute  of  Massachusetts,  it  is  not  necessary 
that  the  selectmen  should  have  acted  in  the  premises.  The  remedy 
in  such  case  is  not  by  an  action  against  the  town,  but  by  proceed- 
ings under  the  statute  against  the  company.® 

8.  In  such  case  the  company  are  estopped  to  deny,  that  the  con- 
struction of  their  road,  as  in  fact  made,  was  done  by  their  servants 
in  compliance  with  the  requirement  of  the  charter.®  And  embank- 
ments made  by  them  for  the  purpose  of  carrying  *  a  highway  over 
the  railway,  are  to  be  regarded  as  a  part  of  the  railway.® 

9.  By  a  submission  to  arbitration  it  was  provided  that  the  arbi- 
trator should  determine  what  sum  should  be  paid  for  the  purchase 
of  land,  and  what  "  other,  if  any,  sum  for  severance  damage,  and 
the  arbitrator  after  reciting  "  the  submission,  and  that  he  had  con- 
sidered the  matters  so  referred  to  him,  awarded  a  certain  sum  to 
be  paid  for  the  purchase  of  the  land,  without  saying  any  thing 
about  severance-damage  :  it  was  held  that  the  award  was  final 
and  good,  that  the  arbitrator  by  his  silence  negatived  any  right  to 
compensation  on  account  of  severance-damage.^ 

10.  A  submission  to  arbitration  under  the  English  statute  for 
assessing  land  damages  is  not  revoked  by  the  death  of  the  land- 
owner.^®   It  was  here  considered  that  the  award  was  valid  although 

*  Parker  v.  Boston  &  Maine  Railw.,  3  Cush.  107. 

•  In  re  Swansea  Harbor  Trustees,  6  Jur.  N.  S.  979 ;  s.  c.  nom.  Beaufort  v. 
Swansea  Harbor  Trustees,  8  C.  B.  N.  S.  146. 

'"  Caledonia  Railw.  Co.  ».  Lockhart,  3  McQu.  Ho.  Lds.  808 ;  s.  c.  6  Jur. 
N.  S.  1311,  in  the  House  of  Lords. 
♦383 


§  104.  BY  ABBITBATION.  883 

not  made  within  the  statute  period  of  three  months ;  that  the  arbi- 
trator may  employ  an  expert  and  consult  men  of  science,  if  neces- 
sary ;  that  the  right  to  compensation  extends  to  any  laud  injured 
by  the  severance  of  that  which  was  taken,  or  by  the  works  which 
the  company  is  authorized  to  construct,  and  may  include  damages 
likely  to  be  caused  to  the  tenants  of  the  land-owner.  The  right  to 
compensation  depends  on  cause  and  effect,  and  not  on  "  proximity 
or  distance." 

11.  The  award  of  a  gross  sum  for  damages  for  drainage  whidh 
lessened  a  waterpower  upon  which  a  mill  had  been  erected,  was 
held  presumptively  to  apply  to  the  damage  to  the  mill,  and  not  to 
the  unemployed  waterpower,  which  might  be  available  for  the 
proprietor  of  the  other  side  of  the  river." 

"  St.  George  c.  Reddington,  10  Ir.  Ch.  176. 


384 


CONSTBUCTION   OF  RAILWAYS. 


CH.  XV. 


♦CflAPTER    XY. 


CONSTRUCTION   OF  RAILWAYS. 


SECTION   I. 


Line  of  Railway.  —  Right  of  Deviation. 


1.  Manner  of  defining  the  route  in  English 

charters. 

2.  Question  involved  stated, 

3.  Plans  only  binding,  when  and  firr  the 

purpose  re/eired  to  in  the  act. 

4.  Contractor  bound  by  deviation,  unless  he 

object. 

5.  Courts  of  equity  wiU  not  enforce  contract 

against  public  security. 

6.  Right  to  construct  accessory  works, 

7.  8.    Company  may  take  lands  designated, 

in  their  discretion. 
9.   Equity  cannot  enforce  contract  not  incor- 
porated into  the  act. 

Right  of  deviation  lost  by  election. 

Railway  betu^een  tun  towns,  extent  of 
grant. 

Grant  of  land  for  railway  includes  acces- 


13.  Route  designated  need  not  be  followed 

literally. 

14.  Terminus  being  a  town,  is  not  extended, 

as  the  town  extends. 

15.  Party  accepting  compensation  waives  in- 

formality. 

16.  Powers  limited  in  time  expire  with  limita- 

tion. 

17.  Construction  of  charter  as  to  extent  of 

route. 

18.  Map  may  be  made  to  yield  to   other 

grounds  of  construction, 

19.  Power  to  change  location  must  be  exer- 

cised before  construction, 

20.  Binding  force  of  plans  made  part  of 

charter, 

21.  Grant  terminating  at  toum  liberally  con- 

strued. 


§  105.  1.  The  English  railway  acts  are  granted  altogether,  after 
full  surveys  of  the  route  and  with  reference  to  definite  plans  of 
the  engineers,  which,  when  referred  to  generally  in  the  act,  thus 
become  so  far  a  part  of  it  as  to  be  binding  upon  the  company  to 
the  extent  of  determining  the  datum  line,  and  the  line  of  railway 
measured  with  reference  to  that  datum  line  ;  and  the  level  of  the 
railway,  with  reference  to  the  datum  line ;  but  not  the  surface 
levels,  unless  expressly  so  provided  in  the  act.^ 

•  North  British  Railw.  v.  Tod,  5  BeU  Ap.  Cas.  184;  s.  c.  4  Railw.  C.  449. 
This  was  an  appeal  from  the  judgment  of  the  Court  of  Sessions  in  Scotland. 
The  opinions  of  Lord  Lyndhurst,  Chancellor,  and  of  Lord  Campbell,  Ch.  J., 
certainly  exhibit  the  rule  of  the  English  law  upon  this  subject  verj-  fully  and  very 
ably.  Lord  Lyndhurst  says :  **  Now  as  to  the  eflfect  of  plans  exhibited  previous 
to  the  contract  being  made,  or  previous  to  the  act  of  parliament  being  obtained, 
*384 


§  105.  LINE  OP  RAILWAY.  —  RIGHT   OP  DEVIATION.  386 

*  2.  The  question  in  this  last  case  ^  was  in  regard  to  the  right 
to  intersect  an  approach,  leading  to  a  mansion-house,  at  a  *  dif- 

it  does  seem,  fi*om  cases  which  have  occurred,  both  in  Scotland  and  this  country, 
that  the  rule  of  the  courts  in  this  countr^S  and  in  the  otiier,  is  no  longer  a  matter  of 
any  doubt  or  dispute.  If  a  contract  or  an  act  of  parliament  refer  to  a  plan,  to  the 
extent  that  the  act  refers  to  the  plan,  and  for  the  purpose  for  which  the  act  or  con- 
tract refers  to  the  plan,  undoubtedly  it  is  part  of  the  contract  or  part  of  the  act.  As 
to  that  there  is  no  dispute.  A  contract,  or  an  act  of  parliament,  either  does  not 
refer  to  a  plan  at  all,  or  it  refers  to  it  for  particular  purposes.  It  has  been  con- 
tended, both  in  Scotland  and  in  England,  that  the  defendant  in  the  suit,  or 
those  who  claim  the  benefit  of  the  provisions  of  an  act  of  parliament,  previous 
to  this  enactment  being  made,  or  the  contract  being  concluded,  have  repre- 
sented that  the  works  are  to  be  carried  on  in  a  particular  mode,  upon  a  plan 
shown  previous  to  the  powers  being  obtained  under  the  act,  or  the  contract  be- 
ing concluded,  and  that  the  party  obtaining  the  act,  or  obtaining  the  contract,  is 
bound  by  such  representation.  There  was  a  case  very  much  considered  in  Scot- 
land, the  case  of  The  Feoffees  of  Heriot's  Hospital  v.  Gibson,  2  Dowl.  301 ;  and 
several  cases  have  occurred  in  the  courts  of  equity  in  this  country.  It  was  my 
fortune  to  have  to  consider  the  matter  very  minutely  in  the  case  of  Squire  r. 
Campbell,  1  My.  &  Cr.  459,  in  which  I  thought  it  my  duty  to  review  all  the  cases 
that  had  occurred  in  the  one  coiutry  and  in  the  other,  for  the  purpose,  if  possi- 
ble, of  establishing  a  rule  which  might  be  a  guide  on  future  occasions  when  sim- 
ilar cases  should  occur ;  and  I  found  that,  certainly,  what  had  been  very  much 
the  opinion  of  the  profession  in  this  country,  namely,  that  the  parties  were 
bound  by  the  exhibition  of  such  plans,  had  met  with  a  very  wholesome  correc- 
tion by  the  doctrine  laid  down  by  Lord  Eldon,  and  Lord  Bedesdale,  in  the  case 
of  Heriot's  Hospital,  decided  by  this  House.  Under  the  authority  of  that  case, 
in  which  the  point  was  very  distinctly  raised,  and  deliberately  decided  upon,  I 
came  to  the  conclusion  that  there  was  no  ground  for  equitable  interposition. 
Now,  my  Lords,  not  relying  upon  the  authority  of  Squire  v.  Campbell,  but  rely- 
ing, as  we  are  bound  to  do,  upon  the  case  of  The  Feoffees  of  Heriot's  Hospital, 
I  consider  that  to  be  the  rule  to  which  the  courts  of  this  country,  and  the  Court 
of  Sessions  in  Scotland,  and  this  House,  must  hereafter  adhere.  Taking  that, 
then,  to  be  the  rule  in  examining  the  facts  of  this  case,  and  the  act  of  parliament 
upon  which  the  question  turns,  we  are  not  to  16ok  at  what  was  represented  upon 
the  plan,  except  so  far  as  its  representation  is  incoq)orated  in,  and  made  part  of, 
the  act  of  parliament ;  and  the  real  question,  therefore,  turns  upon  this,  whether 
the  acts  of  parliament  do  or  do  not  make  the  datum  line,  and  line  of  railway  with 
reference  to  that  datum  line,  the  subject-matter  of  these  enactments,  and  the  rule 
by  which  the  rights  of  the  parties  are  to  be  regulated,  or  whether  it  also  includes 
the  surfaces  which,  in  this  instance,  accidentally,  no  doubt,  had  been  very  much 
misrepresented  upon  the  plan. 

"  I  say,  then,  that  a  case  does  arise  upon  these  provisions  of  the  act,  in  which 
the  plan  indeed  is  referred  to,  but  is,  in  the  terms  of  the  act  of  parliament,  re- 
ferred to  only  for  the  purpose  of  ascertaining  the  line  of  the  railway,  with  refer- 
ence to  the  datum  line.  It  is  not  referred  to  with  reference  to  any  surface  level. 
The  plan,  therefore,  is  entirely  out  of  the  enactment,  and  is  not  to  be  looked  at 

25  ♦  385,  386 


386  CONSTRUCTION   OP   RAILWAYS.  *  CH.  XV. 

ferent  level  from  that  laid  down  in  the  parliamentary  plans,  in 
which  it  appeared  as  a  cutting  of  fifteen  feet,  and  the  way  raised 

for  the  purpose  of  construing  the  enactment  as  to  any  part  of  it,  except  so  far 
as  it  is  referred  to  and  incorporated  in 'the  act.  Arriving  at  that  construction 
of  the  rule  upon  the  provisions  of  the  two  acts  to  which  I  have  referred,  and 
applying  it  to  the  principle  which  has  been  established  in  the  cases  I  have  men- 
tioned, we  have  no  difficulty  in  coming  to  the  conclusion,  that  the  application  of 
that  principle  will  necessarily  lead  to  the  construction  of  the  clauses  to  which  I 
have  referred.  The  plan  is  binding,  to  the  extent  of  determining  the  datum  line, 
and  the  line  of  railway  measured  with  reference  to  that  datum  line,  but  not  with 
reference  to  the  surface  levels  of  the  land,  because  the  act  does  not  apply  it  for 
that  purpose,  but  cautiously  confines  the  enactment  to  the  other  plans  to  which 
I  have  referred. 

"Acting,  therefore,  upon  the  principle  so  established,  and  with  reference  to 
the  construction,  or  what  I  conceive  to  be  the  construction,  to  be  put  upon  these 
sections,  although  we  cannot  but  greatly  lament  the  hardships  which,  in  all  prob- 
ability, these  circumstances  have  imposed  upon  the  respondent,  in  having  his 
land  interfered  with  in  a  manner  which  he  did  not  at  all  anticipate ;  yet,  when 
we  are  called  upon  to  consider  whether  the  Court  of  Sessions  is  correct  or  not, 
we  are  bound  to  look  to  see  what  are  the  powers  which  these  acts  vest  in  the 
company ;  and  for  the  reason  I  have  explained,  I  come  to  the  conclusion  that 
the  company  have  not  exceeded  those  powers,  and  do  not  propose  to  exceed 
those  powers,  in  the  plans  that  they  have  formed,  and  that  the  Court  of  Sessions 
has  been  in  error  in  granting  the  interdict." 

Lord  Campbell.  —  "I  acknowledge  that  I  come  to  the  conclusion  at  which  I 
have  arrived  with  verj'  great  reluctance.  It  seems  to  me  to  be  a  case  of  very 
great  hardship  upon  the  respondent.  But  when  we  come  to  consider  what  the 
law  upon  the  subject  is,  I  feel  boimd  to  concur  in  the  opinion  which  has  been 
expressed.  What  is  the  legal  construction  of  the  act  of  parliament  ?  Does  the 
company,  or  does  it  not,  propose  to  exceed  the  powers  which  the  acts  of  parlia- 
ment confer  upon  it  ?  Xoav  it  is  admitted,  that  if  the  deviation  is  to  be  calcu- 
lated from  the  datum  line  alone,  they  (the  company)  do  not  propose,  either 
vertically  or  laterally,  to  exceed  the  powers  of  deviation  which  are  conferred 
upon  them.  Well,  then,  that  raises  the  question  whether  those  powers  of  devia- 
tion are  to  be  calculated  from  the*datimi  line  alone,  or  whether  the  surface-level 
is  to  be  taken  into  consideration,  and  my  opinion  is,  that  the  act  does  refer 
every  thing  to  the  datum  line.  I  think  it  is  evident  that  the  11th  section  clearly 
makes  the  datum  line  alone  that  which  is  to  be  regarded.  The  word  '  levels,'  in 
the  plural  number,  really  does  not  at  all  include  the  surface-levels.  It  means 
merely  the  levels  of  the  datum  line,  which  point  out  the  course  the  railway  is  to 
go.  If  that  be  so,  the  company  do  not  propose  to  do  any  thing  that  they  are  not 
authorized  to  do,  according  to  the  letter  of  the  act  of  parliament. 

"  There  certainly  was  a  representation  made  here  on  the  part  of  the  company, 
when  they  proposed  to  bring  in  the  act,  by  which  they  intimated  that,  at  that 
time,  the  intention  was  that  the  railway  should  be  fifteen  feet  four  inches  below 
the  surface  of  the  respondent's  property  at  the  point  of  intersection ;  and  that 
the  bridge  by  which  his  approach  should  pass  over  the  railway,  would  not  be 


§  105.  LINE   OF   RAILWAY.  —  BIGHT  OP  DEVIATION.  387 

*  upon  a  bridge  two  feet.  The  owner  of  the  house,  it  seems,  had 
opposed  the  railway  being  carried  through  his  avenue,  but,  rely- 
ing upon  the  representations  contained  in  the  plan  and  sections, 
was  induced  to  abstain  from  opposing  the  bill.  The  line  of 
deviation  is  marked  upon  the  plan,  and  is  by  the  act  limited  to 
ten  yards  in  passing  through  villages,  and  one  hundred  yards  in 
the  open  country. 

3.  In  this  case  it  was  decided,  tliat  the  plans  were  only  bind- 
ing upon  the  company  to  the  extent  to  which  they  were  referred 
to  in  the  act,  and  that  it  made  no  difference  that  the  deposited 
plans  were  so  incorrect  as  altogether  to  mislead  the  owner  of  the 
*  lands,  in  reference  to  the  manner  in  which  his  property  would  be 
affected  by  the  railway  works.  The  plans  not  being  referred  to 
in  the  act,  or  only  referred  to,  as  in  the  present  case,  to  determine 

more  than  three  feet.  But  this  was  entirely  an  intimation,  on  the  part  of  the 
company,  that  such  was  their  intention.  An  act  of  parliament  of  this  sort  has, 
by  Lord  Eldon  and  all  other  judges  who  have  considered  the  subject,  been  con- 
sidered as  a  contract.  Well,  then,  what  took  place  was  a  negotiation ;  it  was 
not  a  contract.  We  must  disregard  it,  and  we  must  look  to  see  what  the  con- 
tract was.  The  contract  is  to  be  gathered  from  the  words  of  the  act  of  parlia- 
ment ;  and  that  brings  us  to  the  question  that  I  first  considered,  what  is  the 
construction  of  the  act  of  parliament  ?  That  act  of  parliament  must  be  considered 
as  overruling  and  doing  away  with  every  thing  that  had  taken  place  prior  to  the 
time  when  the  act  passed,  and  renders  the  representation  or  proposal  of  the  com- 
pany, pending  the  act,  of  no  avail.  Many  cases  have  occurred  in  the  courts  of 
common  law  in  which  it  has  been  held,  that  ever}'  thing  that  takes  place  before  a 
written  contract  is  signed  is  entirely  to  be  disregarded  in  construing  the  contract. 
Now,  if  the  respondent  had  been  cautious,  he  would  have  done  what  I  would 
strongly  recommend  to  all  gentlemen  hereafter  to  do,  under  similar  circum- 
stances, which  is,  to  have  a  special  clause  introduced  into  the  act  of  parliament 
to  protect  their  rights." 

See  also  Beardmer  p.  The  London  &  N.  Western  Railw.,  1  Hall  &  Twells,  161 ; 
8.  c.  6  Railw.  C.  728.  The  same  rule  obtains  in  this  country.  Boston  &  Prov. 
Railw.  r.  Midland  Railw.,  1  Gray, 340;  Commonwealth  r.  Fitchburg  Railw.  8  Cush. 
240.  It  seems  that  the  deviation  of  five  feet,  which,  by  the  11th  section  of  the 
Railway  Clauses  Act  of  1846,  is  allowed  in  regard  to  levels,  is  to  be  reckoned  with 
reference  to  the  level  of  the  datum  line,  and  not  with  reference  to  the  surface- 
levels  delineated  on  the  plans.  And  any  greater  deviation  in  regard  to  levels,  which 
may  be  obtained,  under  certain  conditions,  in  certain  emergencies,  is  subject 
to  the  discretion  of  the  Railway  Commissioners ;  and  at  the  suit  of  land-owners, 
affected  by  such  deviation,  beyond  the  limits  allowed  by  the  act,  the  Court 
of  Chancer)-  will  restrain  the  company  from  proceeding  until  they  obtain  the 
judgment  of  such  conmiissioners.  Pearce  v.  Wycombe  Railw.,  1  Drew.  244; 
8.  c  19  Eng.  L.  &  Eq.  122. 

•  387,  388 


388  CONSTRUCTION   OF  RAILWAYS.  CH.  XV. 

the  datum  line  with  reference  to  lateral  deviation,  could  not  con- 
trol beyond  the  matter  of  lateral  deviation. 

4.  This  subject  is  incidentally  connected  with  the  performance 
of  construction  contracts.  But  it  has  been  held,  where  the 
company  deviate  from  the  intended  line  of  the  road,  even  beyond 
what  was  permitted  by  their  act,  with  the  consent  of  the  land- 
owner, and  the  contractor  never  objected  to  the  deviation,  but 
continued  to  receive  certificates  of  estimates,  and  payments,  in 
precisely  the  same  mode  in  which  he  would  have  received  them 
had  the  deviation  not  taken  place,  that  it  did  not  affect  his  lia- 
bility upon  the  contract.^ 

5.  A  reference,  in  the  special  act,  to  the  deposited  plans,  for 
one  purpose,  does  not  make  them  binding  for  all  purposes.^  So 
too,  where,  by  the  general  acts,  a  railway  company  has  power  to 
pass  highways  and  other  roads,  by  bridges,  or  excavation,  in 
their  discretion,  but  their  special  act  gives  them  power  to  pass 
them  on  a  level,  this  will  not  compel  them  to  do  so ;  they  may 
still  exercise  the  power  conferred  by  the  general  acts.  And  a 
specifd  agreement  with  land-owners,  that  they  will  pass  such 
roads  on  a  level,  being  a  contract  in  derogation  of  public  right, 
inasmuch  as  the  public  security  is  greatly  jeoparded  thereby,  will 
not  be  specifically  enforced  in  a  court  of  equity.* 

6.  The  extent  of  deviation  is  to  be  measured  from  the  line 
delineated  upon  the  plans  to  the  actual  medium  filum  of  the  rail- 
way as  constructed,  and  the  fact  of  the  embankments  extending 
beyond  that  distance  is  no  violation   of  the   right   of  deviation 

*  allowed  in  the  act.^     Where  a  tunnel  is  marked  upon  the  plans 
referred  to  in  the  act,  it  must  be  made  in  the  exact  position  in- 

»  Ranger  v.  The  Great  Western  Railw.,  6  Ho.  Lds.  72 ;  s.  c.  27  Eng.  L.  & 
Eq.  35. 

3  Reg.  r.  Caledonia  Railw.,  16  Q.  B.  19 ;  s.  c.  3  Eng.  L.  &Eq.  285.  Where 
there  is  a  power  given  for  deviation  in  the  construction,  which  would  render 
some  portion  of  the  delineated  surveys  impracticable,  it  must  be  taken,  as  of 
necessity,  that  the  legislature  intended  the  omission  of  such  particxdars  as  be- 
came impracticable  in  a  given  contingency  allowed  by  the  act. 

*  Braynton  c.  The  London  &  North  W.  Railw.,  4  Railw.  C.  653.  But  the 
Lord  Chancellor,  upon  appeal,  considered  that  the  agreement  only  extended  to 
the  land  to  be  purchased,  and  that  it  contained  nothing  intended  to  limit  the 
powers  given  to  the  company  by  the  general  acts. 

»  Doe  d.  Paj-ne  v.  The  Bristol  &  Exeter  Railw.,  2  Railw.  C.  75 ;  8.  c.  6  M. 
&  W.  320 ;  Doe  d.  Armistead  v.  The  North  Staffordshire  Railw.,  16  Q.  B.  526 ; 
8.  c.  4  Eng.  L.  &  Eq.  216. 
•  389 


§  105.  UNE   OP   RAILWAY.  —  RIGHT  OP  DEVIATION.  889 

dicated,  and  the  general  right  of  deviation  does  not  apply.*  But 
the  company  may  take  lands  within  the  line  of  deviation  for  a 
branch  railway."  Under  an  act  allowing  land  to  be  "  taken 
when  necessary  for  making  and  maintaining  the  said  railway 
and  works,"  it  was  held  that  the  company  might  take  lands  for 
forming  or  enlarging  stations,  or  places  for  carriages  to  collect 
and  wait  till  trains  are  ready  to  start ;  and  the  Lord  Cliancellor 
said,  in  one  case,^  "  The  term  railway,  by  itself,  includes  all 
works  authorized  to  be  constructed ;  and  for  the  purpose  of  con- 
structing the  railway,  the  company  are  authorized  to  construct 
such  stations  and  other  works  as  they  may  think  proper." 

7.  And  it  would  seem  that,  where  lands  are  designated  by  num- 
bers on  the  plans,  although  not  altogether  within  the  line  of  deviation, 
they  may  be  taken  by  the  company  when  necessary  for  stations.® 

And  it  has  recently  been  decided  in  the  House  of  Lords,  that 
where  the  legislature  authorized  a  railway  company  to  take,  for 
the  purpose  of  their  undertaking,  any  lands  specially  described  in 
the  act,  it  constitutes  them  the  judges  as  to  whether  they  will  or 
will  not  take  those  lands,  provided  they  take  them  bona  fide^  with 
tlie  object  of  using  them  for  the  purposes  authorized  by  the  legis- 
lature, and  not  for  any  sinister  or  collateral  purpose.^^  And 
*  after  referring  the  question,  as  to  the  propriety  or  right  to  take 
the  land,  to  an  engineer,  who  decided  against  the  company  and 
in  favor  of  the  land-owner,  the  court  ultimately  held  that  neither 
the  opinion  of  the  engineer  nor  of  the  court  could  curtail  the 
power  of  the  company  m  respect  to  the  quantity  of  land  which 

•  Little  r.  The  Newport,  Ab.  &  Hereford  Railw.,  12  C.  B.  762 ;  8.  c.  14  Eng. 
L.  &  Eq.  309. 

»  Sadd  r.  The  Maldon,  Witham  &  B.  Railw.,  6  Exch.  143. 
»  Cother  V.  Midland  Railw.,  2  Phillips,  469. 

•  Crawford  v.  Chester  &  Holyhead  Railw.,  11  Jur.  917;  1  Shelford,  Rennet's 
ed.  617.  But  the  deviation  is  not  authorized  for  the  purpose  of  taking  materials 
alone.     Bentinck  p.  Norfolk  Estuary,  32  Law  Times,  29. 

'"  Stockton  &  Darlington  Railw.  Co.  p.  Brown,  9  Ho.  Lds.  246 ;  8.  C.  6  Jur,  N. 
S.  1168.  But  a  railway  cannot  take  the  fee  of  land  for  the  purpose  of  supplying 
soil  to  build  an  embankment.  Eversfield  p.  Midsussex  Railw.,  1  Gif.  153 ;  8.  c. 
affirmed,  6  Jur.  N.  S.  776  ;  8.  c.  3  De  G.  &  J.  286.  Nor  can  land  be  token  within 
the  range  of  the  powers  conceded  by  the  act,  except  for  the  exclusive  purpose  of  the 
works  named  in  the  act,  and  if  any  subsidiary  object  is  embraced  in  the  pur- 
pose of  taking,  as  to  give  a  more  convenient  road  for  an  ordinary  land-owner, 
who  was  to  pay  part  of  the  expense,  the  company  will  be  restrained  by  injunc- 
tion.    Dodd  p.  Salisbury  &  YeoviUe  Railw.  Co.,  1  Giff.  158;  5  Jur.  N.  S.  782. 

•390 


390  CONSTRUCTION   OP  RAILWAYS.  -CH.  XV. 

the  company,  bona  fide  acting  under  its  statutory  powers,  sought 
to  obtain. 

8.  And  where,  by  a  special  act,  a  company  were  empowered 
to  erect  a  market  house  on  land  described  in  the  deposited  plans, 
it  was  held,  that  as  the  land  of  the  plaintiff  was  described  in  the 
plans,  and  as  therefore  it  might  be  wanted,  the  company  were 
authorized  to  take  it,  and  that  the  company  were  to  be  regarded 
as  the  proper  judges  of  what  lands  were  necessary  for  the  works.^^ 

9.  The  trustees  of  a  turnpike-road  agreed  to  assent  to  a  bill  iii 
parliament  for  the  formation  of  a  railway,  on  the  condition  that 
the  railway  should  pass  over  the  road  at  a  sufficient  elevation, 
and  the  road  be  not  lowered,  or  otherwise  prejudiced.  It  was 
held  that  this  modified  assent,  not  being  embodied  into  any 
agreement  between  the  trustees  and  company,  or  incorporated 
into  the  act,  afforded  no  equitable  ground  for  restraining  the 
company  from  the  exercise  of  all  their  powers  under  their  act ; 
that  the  company  were  authorized  to  sink  the  original  surface 
of  a  turnpike-road  to  gain  the  requisite  elevation  for  the  arch  of 
a  bridge  to  carry  the  railway  over  the  road,  notwithstanding  the 
effect  might  be  to  render  the  road  liable  to  be  occasionally 
flooded.12  Any  omission,  misstatement,  or  erroneous  descrip- 
tion in  the  parliamentary  plans  referred  to  in  the  act,  may  be 
corrected  on  application  to  two  justices,  in  the  mode  prescribed 
in  the  act.^^ 

10.  By  statute,  in  some  of  the  states,  a  railway  company  who 
file  the  location  of  their  road  in  the  requisite  office,  are  allowed 
to  deviate,  to  any  extent  consistent  with  their  charter,  in  the 
course  of  construction."    But  it  has  been  held,  that  after  once 

"  Richards  v.  The  Scarborough  Public  Market  Co.,  23  Eng.  L.  &  Eq.  343. 

"  Aldred  v.  The  North  Midland  Railw.,  1  Railw.  G.  404. 

"  Taylor  c.  Oemson,  2  Q.  B.  978 ;  8.  c.  3  Railw.  C.  65,  shows  the  mode  of 
procedure  in  such  cases. 

"  The  Boston  &  Providence  Railw.  v.  The  Midland  Railw.,  1  Gray,  840. 
The  charter  gave  the  company  power  to  construct  their  road  in  five-miles  sec- 
tions, but  not  to  begin  the  work  within  a  prescribed  distance  of  one  terminus, 
or  until  all  of  its  stock  was  taken  by  responsible  persons,  and  one  hundred  and 
forty  thousand  dollars  paid  into  the  treasury ;  it  was  held,  that  this  restriction,  in 
regard  to  the  subscription  and  payment  of  stock,  did  not  fix  a  limitation  upon 
the  company  in  regard  to  building  their  whole  road  not  in  sections. 

The  courts,  in  interpreting  an  act  of  incorporation, 'will  not  examine  what 
took  place  while  it  was  passing  through  the  legislature.  Bank  of  Pennsylvania 
V.  The  Commonwealth,  19  Penn.  St.  144.    And  in  Commonwealth  c.  Fitchburg 


§  105.  LINE   OP  RAILWAY.  —  RIGHT  OF  DEVIATION.  391 

*  locating  their  road,  tbeir  power  to  re-locate,  and  for  that  pur- 
pose to  occupy  the  land  of  another  or  the  public  street,  ceases.** 

11.  It  has  been  held,  that  a  grant  to  a  railway  company  to 
construct  their  road  between  two  towns,  gave  them  implied 
authority  to  construct  a  branch  to  communicate  with  a  depot  and 
turn-table,  on  a  street  in  one  of  the  towns  (Now  Orleans)  off  the 
direct  line.*^ 

12.  The  grant  to  take  land  implies  power  to  take  buildings.*^ 
And  a  grant  to  take  land  for  the  company's  road  implies  the  right 
to  take  land  for  all  the  necessary  works  of  the  company,  *  such  as 
depots,  car  and  engine  houses,  tanks,  repairing  shops,  houses  for 
switch  and  bridge  tenders,  and  coal  and  wood  yards,  but  not  for 
the  erection  of  houses  for  servants,  car  and  engine  factories,  coal- 
mines, <fec.*^ 

13.  And  a  charter  allowing  the  company  to  extend  their  line  to 

Railw.  8  Cush.  240,  it  was  held,  that  the  petitions  to  the  legislature  upon  which 
the  act  was  granted  were  inadmissible  upon  the  question  of  the  construction  of 
the  act,  in  regard  to  the  course  and  direction  of  the  line  of  the  road. 

'*  Little  Miami  Railw.  v.  Naylor,  2  Ohio  N.  S.  235.  And  an  authority  to  change 
the  location  of  the  line,  during  the  work,  does  not  imply  power  to  change  it  ader 
the  road  is  complete.  Moorhead  v.  Little  Miami  Railw.,  17  Ohio,  340.  The 
same  view  is  maintained  by  Lord  Eldon,  Chancellor,  in  Blakemore  v.  Glamorgan- 
flhire  Canal  Co.,  1  My,  &  K.  154.  But  a  different  rule  seems  to  be  intimated  in 
South  Carolina  Railw.  ex  parte,  2  Rich.  434.  But  see  Canal  Co.  r.  Blakemore, 
ICI.  &  Fin.  262;  State  ».  Norwalk  &  Danbury  Turnpike  Co.,  10  Conn.  157; 
Turnpike  Co.  v.  Hosmer,  12  Conn.  364 ;  Louisville  &  Nashville  Branch  Turnpike 
Co.  V.  Nashville  &  Kentucky  Turnpike  Co.,  2  Swan,  282,  where  the  proposition 
of  the  text  is  maintained.  But  in  South  Carolina  Railw.  v.  Blake,  9  Rich.  229, 
it  is  held,  that  a  railway  company  have  the  same  power  to  acquire  land,  either  by 
grant  or  by  compubor}'  proceedings,  for  the  purpose  of  varj'ing,  altering,  and  re- 
pairing their  road,  as  for  the  original  purpose  of  locating  and  constructing  it.  But 
that  the  company  are  not  the  final  arbiters  in  determining  the  exigency  for  taking 
the  land.  The  petition  of  the  company  for  taking  the  land  should  allege  in 
detail  the  necessity  for  taking  it,  and  the  land-owner  may  traverse  these  allega- 
tions, and  in  that  case  this  is  tried  as  a  preliminary  question. 

'•  Knight  r.  Carrolton  Railw.,  9  Louis.  Ann.  284;  New  Orleans  &  Carrolton 
Railw.  V.  Second  Municipality  of  New  Orleans,  1  id.  128.  But  where  by  the 
charter  of  a  railway  they  were  authorized  to  construct  their  road  '  *  from  Charles- 
ton ^^  to  certain  other  points,  it  was  held  that  this  gave  them  no  authority  to 
enter  the  city,  but  that  the  boundary  of  the  city  was  the  terminus  a  quo.  North- 
east Railw.  V.  Payne,  8  Rich.  177. 

"  Brocket  c.  Railway,  14  Penn.  St.  241. 

"  State  V.  Coram,  of  Mansfield,  3  Zab.  510 ;  Vt.  Cent.  Railw.  v.  Burlington 
28  Vt.  193;  Nashville  &  C.  RaUw.  v.  Cowardin,  11  Humph.  348. 

•  391,  392 


392  CONSTRUCTION  OP   RAILWAYS.  CH.  XV. 

a  certain  point,  "  thence  running  through  Acton,  Sudbury,  Stow, 
Marlborough,"  <fec.,  does  not  oblige  the  company  to  locate  their 
road  through  these  towns,  in  the  order  named  in  the  charter.  And 
a  location  of  the  road  from  Acton  through  Stow  to  Sudbury,  and 
thence  through  Stow  again  to  Marlborough,  was  held  to  be  a  suffi- 
cient compliance  with  the  grant.^^ 

14.  If  the  charter  of  a  railway  limit  the  line  of  construction,  by 
the  boundaries  of  a  borough,  and  the  boundaries  of  such  borough 
are  subsequently  extended,  that  will  not  alter  the  right  of  the 
company  in  regard  to  the  location  of  their  road.^  And  an  exclu- 
sive grant  for  a  railway  within  certain  limits,  defined  at  one  ter- 
minus by  a  city,  is  to  be  restrained  to  the  limits  of  the  city  at  the 
date  of  the  grant.^^ 

15.  A  party  whose  land  was  taken  by  a  railway  company  for  the 
purposes  of  their  road,  and  the  damages  assessed  and  *  deposited 
for,  and  accepted  by  him,  with  full  knowledge  of  all  the  proceed- 
ings and  of  any  defect  therein,  and  who  allowed  the  company  to 
occupy  the  land  and  make  improvements  thereon,  without  remon- 
strance, for  two  years,  and  who  then  brought  an  action  of  trespass 
against  the  company,  on  the  ground  that  their  proceedings  were 
irregular  and  void,  was  held  to  have  waived  all  right  to  object  to 
them  on  that  ground.^^ 

16.  And  where  the  company  by  charter  had  power  to  take  land 

"  Commonwealth  r.  The  Fitchbui^  Railw.,  8  Gush.  240.  See  also  Brigham 
r.  Agricultural  Branch  Railw  ,  1  Allen,  366.  It  seems  agreed  that  slight  devia- 
tions from  the  route  prescribed  in  the  charter  will  not  release  the  stockholders 
from  the  obligation  of  their  subscriptions ;  but  that  any  substantial  deviation 
will  have  that  effect.  The  precise  line  of  distinction  between  the  two  classes  of 
cases  must  be  left  to  the  construction  of  the  courts  in  each  particular  case.  The 
stockholders  may  enjoin  the  company  in  the  course  of  construction  from  making 
an  essential  deviation,  and  after  the  road  is  completed,  the  company  may,  by 
scire  facias,  be  called  to  account  for  not  building  upon  the  route  indicated  in 
their  charter.  But  where  all  interested  acquiesce  in  the  route  adopted,  until 
their  road  is  completed,  it  will  require  a  verj'  clear  case  to  induce  the  courts  to 
interfere.  The  following  cases  bear  upon  the  general  question :  Ashtabula  & 
N.  L.  Railw.  r.  Smith,  15  Ohio  N.  S.  328 ;  Champion  v.  Memphis  &  C.  Railw. 
Co.,  35  Miss.  692;  Fry  v.  Lex.  &  Big  S.  Railw.  Co.,  2  Met.  (Ky.)  314; 
Aurora  r.  West,  22  Ind.  88 ;  Smith  v.  Allison,  23  id.  366 ;  Miss.  O.  &  R.  Railw. 
t>.  Cross,  20  Ark.  443;  Witter  r.  same  Co.,  id.  463;  Illinois  Grand  T.  Railw. 
r.  Cook,  29  111.  237.     See  also  K.  R.  &  R.  Railw.  c.  Marsh,  17  Wise.  13. 

»  Commonwealth  r.  Erie  &  North  East  Railw.,  27  Penri.  St.  839. 

*'  Pontchartrain  Railw.  v.  Lafayette  &  Pont.  Railw.,  10  Louis.  Ann.  741. 

*•  Hitchcock  r.  Danbury  &  Norwalk  Railw.,  25  Conn.  616. 
*393 


§  105.  LINE  OP  RAILWAY.  —  RIGHT  OP   DEVIATION.  393 

for  engine  and, water  stations,  within  five  years  from  the  date  of 
their  grant,  it  was  held  they  could  not  exercise  such  powers  after 
the  expiration  of  the  time  limited,  although  operating  their  line  by 
horse  power  during  that  time  they  had  not  required  the  exercise 
of  such  powers  on  that  account.^ 

17.  A  charter  to  construct  a  railway,  "  to  commence  at  some 
convenient  point  in  the  city  of  Brooklyn,  and  to  terminate  at  New- 
town, Queen's  county,  —  to  be  located  in  King's  and  Queen's 
counties,  and  its  length  to  be  about  twenty-five  miles ; "  there 
being  both  a  town  and  village  of  the  name  of  Newtown,  and  the 
boundary  of  the  town  being  also  the  boundary  of  the  city  of  Brook- 
lyn, it  was  held,  that  the  natural  and  only  consistent  construction 
was,  to  regard  Newtown  as  tlie  village  of  that  name,  and  thus  extend 
the  railway  through  a  portion  of  both  counties  named,  and  not 
restrict  it  to  the  limits  of  the  city  of  Brooklyn.^ 

18.  It  is  here  declared,  that  where  the  charter,  as  applied  to  the 
route  indicated,  defines  a  precise  line,  that  line  becomes  as  binding 
upon  the  company  as  if  it  formed  a  portion  of  the  charter  itself ; 
and  that  where  a  map  is  filed  in  conformity  with  the  charter, 
which  does  not  embrace  the  entire  route  indicated  by  the  charter 
as  applied  to  the  subject-matter,  in  order  to  reconcile  the  apparent 
conflict,  the  map  may  be  regarded  as  intended  to  give  only  a  por- 
tion of  the  route ;  or  in  case  of  irreconcilable  conflict,  the  map 
must  yield  to  the  express  provisions  of  the  charter.^  Tlie  distinc- 
tion between  the  application  of  terms  to  indicate  the  route  of  a 
railway  and  to  define  its  termini,  is  considerably  discussed  in  a 
case  in  New  Jersey.^ 

*  19.  A  power  to  change  the  location  of  a  railway,  on  account 
of  the  difficulty  of  construction  and  other  causes,  may  be  exercised  at 
any  time  before  the  construction  is  finished  at  the  particular  point.* 

20.  The  lines  and  works  of  a  railway  are  sufficiently  indicated 
by  black  lines  upon  the  plan,  and  dotted  lines  around  them  to 
mark  the  limits  of  deviation.^  And  where  the  deposited  plans 
and  sections  specify  the  span  and  height  of  a  bridge  by  which  the 
railway  is  to  be  carried  over  a  turnpike-road,  the  company  will 

«»  Plymouth  Railw.  Co.  v.  Colwell,  89  Penn.  St.  887.  * 
•*  Mason  v.  Brooklyn  &  Newtown  Railw.  Co.,  35  Barb.  878. 
"  McFarland  v.  Orange  &  Newark  Horse-Car  Railw.  Co.,  2  Beasley,  17. 
••  Atkinson  v.  Mar.  &  Cin.  Railw.  Co.,  16  Ohio  N.  S.  21. 
«  Weld  r.  London  &  S.  W.  Railw.,  32  Beav.  840;  8.  c.  9  Jur.  N.  S.  610. 

•394 


394  CONSTRUCTION    OF    RAILWAYS.  CH.  XV. 

not,  in  the  construction  of  the  bridge,  be  allowed  ±o  deviate  from 
the  plans  and  sections.^ 

21.  Under  a  charter  which  fixes  the  terminus  of  a  railway  at  or 
near  a  certain  point,  a  large  discretion  is  conferred  upon  the  com- 
pany in  locating  their  road,  which  will  not  be  controlled  by  the 
courts,  unless  for  very  clear  excess,  or  where  bad  faith  is  shown. 
And  where  a  company  is  empowered  to  extend  their  line  from  a 
point  at  or  near  its  present  terminus,  "  in  Fall  River,  in  a  southerly 
direction  to  the  line  of  Rhode  Island,"  a  location  starting  from  a 
point  on  the  line  2,475  feet  from  the  terminus  was  held  authorized.^^ 

SECTION    II. 
Distance,  how  measured. 

1.  This  is  affected  by  svbject-nuMer.  I  4.  Same  rule  in  regard  to  turnpike-roads. 

2.  Contracts  to  build  railway,  bi/  rate  per  \  5.   Rate  fixed  by  mile  means  full  mile ;  no 

mile.  charge  fijr  fractions. 

3.  General  rule  to  measure  by  straight  line.       ' 

§  106.  1.  Questions  of  some  perplexity  sometimes  arise  in  re- 
gard to  the  mode  of  measuring  distance,  in  a  statute  or  contract. 
The  import  of  terms  defining  distance  will  be  sometimes  controlled 
by  the  context,  or  the  subject-matter.  In  one  case,^  where  the 
assignor  of  the  lease  of  a  public-house  in  London  covenanted  that 
he  would  not  keep  a  public-house  within  half  a  mile  from  the 
premises  assigned,  it  was  held  that  the  distance  should  be  com- 
puted by  the  nearest  way  of  access. 

2.  And  contracts  to  be  paid  for  constructing  a  turnpike,  or  rail- 
way, a  given  price  by  the  mile,  would,  ordinarily,  no  doubt,  require 
an  admeasurement  upon  the  line  of  the  road.  It  was  held,  in  a 
late  case  in  Vermont,  that  in  such  cases  the  contractor  is  not  en- 
titled to  compute  the  length  of  track,  and  thus  *  include  turnouts 
and  side-tracks.2  But  this  might  not  exclude  branch  lines  extend- 
ing any  considerable  distance  from  the  main  track. 

**  Atty.-General  ».  Tewksbuiy  &  Great  Malvern  Railw.  Co.,  1  De  G.,  J.  & 
Sm.  423 ;  8.  c.  9  Jur.  N.  S.  951. 

»  Fall  River  Iron  Works  v.  Old  Colony  &  FaU  River  Railw.,  5  Allen,  221. 

'  Leigh  V.  Hind,  9  B.  &  C.  774 ;  s.  c.  17  Eng.  Coram.  L.  R.  495.  But  Parke, 
J.,  was  of  a  different  opinion,  and  said :  "  I  should  have  thought  that  the  proper 
mode  of  measuring  the  distance  would  be  to  take  a  straight  line  from  house  to 
house,  in  common  parlance,  as  the  crow  flies." 

«  Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  766. 
*395 


§  106.  DISTANCE,   HOW    MEASURED.  395 

3.  But,  in  general,  the  English  courts  have  chosen  to  adhere  to 
the  rule  laid  down  by  Parke,  J.,  in  Leigh  i'.  Hind,  that  distance  is 
to  be  measured  in  a  direct  line,  through  a  horizontal  plane.  Thus, 
in  settlement  cases,  where  the  pauper  laws  provide  that  no  person 
shall  retain  a  settlement  gained  by  possessing  an  estate  or  interest 
in  a  parish  for  a  longer  time  than  he  shall  inhabit  '*  within  tea 
miles  thereof,"  it  was  held,  that  the  distance  was  to  be  measured 
in  a  direct  line  from  the  residence  to  the  nearest  point  of  the 
parish.^  And  the  twenty  miles  within  which  the  parties  are 
required  to  reside,  in  certain  cases  affecting  the  jurisdiction  of 
the  county  courts,  by  the  recent  statute,  9  &  10  Vict.  c.  95,  §  128, 
is  to  be  computed  in  a  direct  line,  without  reference  to  the  course 
of  travel.* 

4.  And  where  a  turnpike  act  provided,  that  no  toll-gate  should 
be  erected  nor  any  toll  taken,  within  three  miles  of  B.,  and  the 
road  did  not  extend  to  B.,  but  connected  with  another  turnpike 
which  did,  and  also  a  public  road,  made  since  the  act  was 
passed,  it  was  held,  that  the  three  miles  should  be  measured  "  in 
a  straight  line  on  a  horizontal  plane,  and  not  along  any  of  the 
roads."  ^ 

5.  And  where  the  rate  of  fare  is  fixed  by  the  mile,  and  no  pro- 
vision made  for  fractions  of  a  mile,  the  company  can  only  *  charge 
the  prescribed  tariff  for  the  full  mile  traversed.^  But  the  English 
statute "  provides  specially  for  fractions  of  a  mile. 

»  Regina  r.  Saffron-Walden  Railw.,  9  Q.  B.  76. 

*  Stokes  V.  Grissell,  14  C.  B.  678 ;  8.  c.  25  Eng.  L.  &  Eq.  836 ;  Lake  v. 
BuUer,  5  EI.  &  Bl.  92;  8.  c.  30  Eng.  L.  &  Eq.  264. 

»  Jewell  r.  Stead,  6  El.  &  Bl.  350 ;  8.  c.  36  Eng.  L.  &  Eq.  114.  Lord  Camp- 
bell, Ch.  J.,  said:  "  I  am  of  opinion  that  the  distanre  is  to  be  measured  by  a 
straight  line  upon  a  horizontal  plane."  Lake  r.  Butler,  supra,  lays  this  down  as 
a  general  rule.  Lord  Campbell,  Ch.  J. :  "I  think  we  ought  to  adopt  that  mode 
which  is  most  convenient  and  most  certain.  If  the  distance  is  to  be  measured  by 
the  nearest  mode  of  communication,  uncertainty  will  be  introduced,  whether  it 
may  be  by  foot  way,  or  bridle  way,  or  carriage  way  ;  and  in  some  cases  the  distance 
most  be  travelled  by  all  the  three  modes ;  and  in  others  by  a  tidal  river,  in  which 
case  the  distance  would  varj*,  at  different  times  of  the  day ;  also  the  distance  by 
carriage  road  might  be  shortened,  or  lengthened,  by  a  new  road  being  made. 
But  if  the  other  mode  of  calculation  is  adopted,  no  uncertainty  will  arise." 

•  Rice  V.  Dublin  &  Wicklow  Railw.,  8.1r.  Com.  Law,  160. 
»  21  «&  22  Vic.  c.  76  s.  1. 

•896 


396 


CONSTRUCTION   OP  RAILWAYS. 


CH.  XV. 


SECTION  III. 


Mode  of  Construction,  to  be  done  with  least  Damage. 


1.  Does  not  extend  to  form,  of  the  road,  but 

the  mode  of  construction. 

2.  Special  provisions  of  act  not  controlled  by 

this  genertil  one. 


Works  interfered  with,  to  be  restored,  for 
all  uses. 


§  107.  1.  It  has  been  held,  that  the  general  provisions  of  the 
Railway  Clauses  Consolidation  Act,  that  in  the  exercise  of  their 
powers,  the  company  shall  do  as  little  damage  as  possible,  and 
shall  make  satisfaction,  to  all  parties  interested,  for  all  damages 
sustained  by  them,  does  not  extend  to  the  form  of  constructing 
the  railway.  It  does  not  apply  to  what  is  done,  but  to  the  manner 
of  doing. 

2.  Hence,  if  by  other  sections  of  the  statute  or  special  act  the 
company  are  required  to  build  bridges  in  a  particular  form,  they 
may  still  do  so,  notwithstanding  it  may  cause  more  damage  to  the 
owners  of  land  than  to  build  them  in  some  other  form.^ 

3.  And  where,  in  a  parliamentary  contract  between  the  pro- 
moters of  a  railway  and  the  proprietors  of  a  ropery,  it  was  stip- 
ulated that  the  railway  should  be  so  constructed,  that  when 
finished  the  level  of  the  ropery  should  not  be  altered,  nor  the 
surface  of  the  ropery  in  the  least  diminished,  it  was  held  the 
company  were  bound  to  restore  the  surface,  so  as  to  be  available 
for  all  purposes  to  which  it  might  have  been  applied  before  the 
construction  of  the  railway,  and  not  for  the  purposes  of  the  ropery 
only.2 

•  Regina  v.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  2  El.  &  BI.  466. 

*  Harby  r.  The  East  &  W.  I.  Docks  and  B.  J.  R.,  1  De  G.  M.  &  G.  290. 


§108. 


MODE  OF   CROSSING   HIGHWAYS. 


397 


•SECTION    IV. 


Mode  of  crossing  Highways. 


1.  English  statutes  fequirt  it  should  not  be  at 

grade. 

2.  Or  if  so,  that  gates  should  be  erected  and 

tended. 
8.   And  if  near  a  station,  railuxiy  train  not  to 

exceed  Jour  miles  an  hour. 
4.    Cannot  alter  course  of  highway. 

6.  Mandamus  does  not  lie  where  company 

have  an  election. 

7.  Railway  cannot  alter  highway  to  avoid 

building  bridge. 

8.  Extent  of  repair  of  bridge  over  railway. 

9.  Permission  to  connect  brandies  with  main 

line  tiot  revocable. 


10.  Grant  to  build  railways  across  main  line 

implies  right  to  use  them  as  common 
carriers. 

11.  Railtvay  responsible  for  injury  by  falling 

into  culi'ert  when  covered  by  snow. 

12.  The  right  to  lay  line  across  railway  car- 

ries  right  to  lay  as  many  tracks  as  are 
convenient  for  the  business. 

18.  Damages  for  laying  highway  across  rail- 
way. 

14.  Laying  highway  across  railway  at  grade- 
Company  not  estopped  by  contract  with 
former  owner  of  land. 


§  108.  1.  By  the  general  English  statutes  upon  the  subject  of 
railways,  it  is  provided,  "  that  if  the  line  of  the  railway  pass  any 
turnpike-road,  or  public  highway,  then,  (except  when  otherwise 
provided  by  the  special  act,)  either  such  road  shall  be  carried 
over  the  railway,  or  the  railway  shall  be  carried  over  such  road, 
by  means  of  a  bridge."  ^ 

2.  And  by  §  47  it  is  provided,  that  whenever  the  railway  does 
pass  any  such  road,  upon  a  level,  the  company  shall  maintain 
gates,  at  every  such  crossing,  either  across  the  highway,  or  the 
railway,  in  the  discretion  of  the  railway  commissioners,  and  em- 
ploy suitable  persons  to  tend  the  same,  who  are  required  to  keep 
them  constantly  shut,  except  when  some  one  is  actually  passing 
the  highway,  or  railway,  as  the  case  may  be.^ 

3.  And  where  a  railway  passes  a  highway  near  a  station,  on 

'  Railway  Clauses  Consolidation  Act,  §  46.  Mandamus  requiring  the  com- 
pany to  carry  their  road  over  a  highway,  by  means  of  a  bridge,  when  that  was 
the  only  mode  in  which  it  could  be  done,  according  to  the  level  of  the  line  of 
the  railway  at  the  time,  was  held  bad.  Southeastern  Railw.  r.  The  Queen,  17 
Q.  B.  485. 

'  A  road  on  which  toll-gates  are  erected  and  tolls  taken  is  a  turnpike  road. 
The  Northam,  B.  &  Roads  Co.  v.  London  &  Southhampton  Railw.,  6  M.  &  W. 
428;  1  Railw.  C.  663;  Regina  c.  E.  &  W.  I.  Docks  RaUw.  Co.,  2  El.  &  Bl. 
466. 

•397 


898  CONSTRUCTION   OF   RAILWAYS.  CH.  XV. 

*  a  level,  the  trains  are  required  to  slacken  their  speed,  so  as  not 
to  pass  the  same  at  any  greater  speed  than  four  miles  an 
hour.^ 

4.  The  right  to  raise  or  lower  highways,  in  the  construction  of 
a  railway,  does  not  authorize  the  company  to  change  the  course 
of  the  highway,  even  with  the  consent  of  the  town  council,  and 
for  so  doing  the  company  were  held  liable  to  persons  who  had 
sustained  special  damage  thereby.* 

5.  The  right  to  use  "  highways  "  in  the  construction  of  plank 
roads,  contained  in  a  general  law,  does  not  extend  to  military 
roads  constructed  by  the  United  States,  while  the  state  was  a 
territory,®  but  the  legistature  may  grant  such  right,  by  the  charter 
of  the  company. 

6.  And  where  a  mandamus^  recited  that  the  railway,  which 
defendants  were  empowered  to  make,  crossed  a  certain  public 
highway,  not  on  a  level,  by  means  of  a  trench,  twenty  feet  deep, 
and  sixty-five  feet  wide,  through  and  along  which  the  railway 
had  been  carried,  and  the  highway  thereby  cut  through  and 
rendered  wholly  impassable  for  passengers  and  carriages ;  and 
that  a  reasonable  time  had  elapsed  for  defendants  to  cause  the 
highway  to  be  carried  over  the  railway,  by  means  of  a  bridge,  in 
the  manner  pointed  out  iii  the  statute,^  and  commanded  de- 
fendants to  carry  the  highway  over  the  railway,  by  means  of  a 
bridge,  in  conformity  with  the  statute,  particularly  specifying  the 
mode,  it  was  held,  that  it  not  being  otherwise  specially  provided 
in  the  company's  charter,  they  had,  by  the  general  act,  an  option 
to  carry  the  highway  over  the  railway,  or  the  railway  over  the 
highway,  by  a  bridge  ;  and  that  the  option  was  not  determined 
by  the  facts  alleged  in  the  writ,  and  the  judgment  of  the  *  Ex- 

'  §  48.  Some  similar  provisions,  in  regard  to  the  construction  of  railways  in 
this  country,  seem  almost  indispensable  to  the  public  security.  But  the  rage  for 
cheap  railways  is  so  great,  that  nothing  of  the  kind  could  be  effected,  we  fear, 
at  present. 

*  Hughes  ».  Providence  &  Wor.  Railw.,  2  R.  I.  493.  It  is  the  duty  of  a 
railway  company  not  to  obstruct  public  roads,  where  they  intersect  the  railway- 
track,  either  by  stopping  a  train  or  otherwise ;  and  the  company  must  take  the 
consequences  of  all  such  obstructions.  Murray  r.  Railw.  Company,  10  Rich. 
227. 

*  Attorney-General  v.  Detroit  &  Erie  Plank-Road  Co.,  2  Mich.  138. 

"  Regina  v.  The  Southeastern  Railw,,  15  Q.  B.  313 ;  8.  c.  6  Eng.  L.  &  Eq.  214. 
'  8  and  9  Vict.  c.  20. 
*  398,  399 


§  108.  MODE  OP  CROSSING   HIGHWAYS.  399 

chequer,   awarding  the  writ,  was   accordingly   reversed   in    the 
Queen's  Bench. 

7.  Where  the  charter  of  a  railway  authorized  them,  by  con- 
sent of  the  commissioners,  to  alter  a  highway  whenever  it  became 
necessary  in  order  to  build  the  railway  in  the  best  place,  and 
required  the  company  to  maintain  all  bridges  made  necessary  to 
carry  the  highway  over  the  railway :  It  was  held  that  the  com- 
pany had  no  power  to  alter  the  course  of  the  highway  in  order 
to  avoid  the  expense  of  building  a  bridge  ;  and  that  the  old  high- 
way was  still  subsisting,  notwithstanding  the  attempt  thus  to  lay 
out  a  substitute.^ 

8.  And  where  a  railway  company,  under  their  statutory  powers, 
in  England,  carry  a  highway  over  their  road  by  means  of  a  bridge, 
the  company  is  bound  to  keep  both  the  bridge  and  the  road  and 
all  the  approaches  thereto  in  repair,  and  such  repair  includes  not 
only  the  structure  of  the  bridge,  but  the  superstructure,  and  every 
thing  requisite  to  put  the  highway  in  fit  condition  for  safe  use.® 

9.  Where  the  proprietors  of  land,  through  which  a  railway 
company  were  empowered  to  take  the  right  of  way,  had  the  right 
to  lay  branch  railways  upon  the  lands  adjoining,  and  to  connect 
them  at  proper  points  with  the  main  line,  so  as  not  to  endanger 
tlie  safety  of  persons  travelling  as  passengers  upon  the  railway, 
and  in  case  of  difference  in  regard  to  any  of  these  points,  the 
same  to  be  determined  by  two  justices  of  the  peace  ;  but  the 
company  were  not  required  to  admit  any  such  branch  to  connect 

'  Norwich  &  Worcester  Railw.  r.  Killingly,  25  Conn.  402.  Nor  have  the 
company  any  right  under  such  a  power  to  materially  and  essentially  change 
the  route  of  a  highway,  that  being  a  power  resting  solely  in  the  discretion  of  the 
municipal  authorities.  Warren  Railw.  Co.  c.  State,  5  Dutcher,  393.  See  also 
Veasie  v.  Penobscot  Railw.  Co.,  49  Me.  119. 

•  North  Staffordshire  Railw.  Co.  v.  Dale,  8  Ellis  &  Bl.  835.  But  where  the 
expense  of  keeping  a  bridge  in  repair  was  imposed  by  statute  upon  several  towns, 
and  a  railway  company,  jointly,  with  a  provision  that  the  municipal  authorities 
of  one  of  the  towns  shall  have  the  care  and  superintendence  of  the  same,  "  and 
shall  employ  all  services  necessary  in  the  care  thereof,"  it  was  held  this  did  not 
impose  any  special  obligation  upon  that  particular  town,  in  regard  to  the  repairs, 
but  that  all  the  parties  still  remained  jointly  responsible  for  the  performance  of 
that  duty,  and  that  the  municipal  authorities  of  this  town  were  thereby  made  the 
agents  of  all  the  parties  thus  responsible  ;  and  that  therefore  one  of  the  parties 
could  not  maintain  an  action  against  the  town  for  an  injur}'  through  the  joint 
neglect  of  all  the  parties.  Maiden  &  Melrose  Railw.  e.  Cbarlestown,  8  Allen, 
245. 


400  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

with  their  line,  at  any  place  where  they  should  have  erected  any 
station  or  other  building ;  it  was  held  that  the  consent  of  the 
company  to  unite  with  the  line  at  a  station  was  not  in  the  nature 
of  a  license  and  could  not  be  revoked.^^ 

10.  And  where  the  owners  or  occupiers  of  adjoining  land  had 
the  right  to  build  railways,  and  to  cross  the  line  of  the  principal 
railway,  without  being  liable  to  toll  or  tonnage,  it  was  held  the 

*  owners  of  such  railways  might  use  them  as  common  carriers  of 
freight  and  passengers." 

11.  It  has  been  held  that  railway  companies  are  responsible  for 
injuries,  resulting  from  the  dangerous  state  of  highways,  caused  by 
their  own  works,  as  where  one  fell  into  a  culvert,  made  by  the 
company  at  a  highway  crossing,  to  prevent  the  accumulation  of 
the  water,  it  being  invisible  at  the  time  by  reason  of  snow.^  So 
also  in  all  cases  where  the  defect  in  the  highway  is  caused  by  the 
works  of  the  railway  company  the  latter  will  be  responsible  for 
all  injuries  in  consequence,  although  the  party  might  also  obtain 
redress  of  the  town  bound  to  maintain  the  highway.^^ 

12.  A  railway  corporation  having  acquired  the  right  to  lay  its 
line  across  a  highway,  may  lay  and  maintain  as  many  tracks  as 
are  essential  to  the  convenient  transaction  of  its  business.^ 

13.  A  railway  corporation  is  entitled  to  damages  for  land  taken 
by  laying  a  public  highway  across  its  line,  and  for  the  expense 
of  maintaining  signs  and  cattle  guards  at  the  crossing,  and  of 
flooring  the  same  and  keeping  it  in  repair  ;  but  not  for  any  in- 
creased liability  to  accidents,  for  increased  expense  of  ringing  the 
bell,  or  for  its  liability  to  be  ordered  by  the  county  commissioners 
to  build  a  bridge  for  the  highway  over  the  track.  And  in  assess- 
ing damages,  in  such  a  case,  no  supposed  benefits  from  an  in- 
crease of  travel  on  the  railway  can  be  set  off  against  tlie  com- 
pany.^ 

14.  Under  the  revised  statutes  of  Massachusetts,  town  or  city 
authorities  have  no  power  to  lay  a  highway  across  a  railway,  at 
grade,  and  the  company  is  not  estopped  from  objecting  thereto  by 
any  agreement  with  the  former  owners  of  the  land  in  regard  to 

»«  Bell  t?.  Midland  RaUw.  Co.,  3  De  G.  &  Jones,  673. 
"  Hughes  V.  Chester  &  Holyhead  Railw,  Co.,  8  Jur.  N.  S.  221. 
»»  Judson  r.  N.  Y.  &  N.  Haven  Railw.  Co.,  29  Co;m.  434. 
"  Gillett  r.  Western  Railw.,  8  Allen,  560. 

"  Commonwealth  c.  Hartford  &  New  Haven  Railw.,  14  Gray,  379. 
»»  Old  Colony  &  Fall  River  Railw.  c.  County  of  Plymouth,  14  Gray,  156. 
*4{K) 


§109. 


RIGHTS   OP   TELEGRAPH   COMPANIES. 


401 


the  right  of  way  to  be  used  by  them  at  the  point  where  tlie  high- 
way is  laid.^*  Nor  can  such  authorities,  under  the  general  statutes 
of  that  state,  lay  out  a  way  across  any  portion  of  the  land,  not 
exceeding  five  rods  in  width,  which  has  been  taken  by  a  railway 
company  for  their  line,  unless  permission  has  been  granted  by 
the  county  commissioners.^^ 


•SECTION   V. 


Righi8  of  Telegraph  Companies. 


1.  Right  to  "pass  directly  acrott  a  railuxty," 

does  not  justify  boring  under  it. 

2.  Exposition  of  the  terms   "  under "  and 

"  across." 


8.   Erecting  posts  in  highway  a  nuisana, 

even  if  sufficient  sjxux  remain. 
n.  4.    Opinion  of  Crompton,  J. 


§  109.  1.  Where  a  telegraph  company  had  by  their  act  the  power 
to  pass  under  highways,  but  to  pass  "  directly  but  not  otherwise 
across  any  railway  or  canal,"  and  a  railway  was  laid  upon  the 
level  of  a  highway,  in  accordance  with  their  special  act,  it  was 
held  that  the  telegraph  company  could  carry  their  works  under 
the  highway  at  the  point  where  it  was  intersected  by  the  railway.^ 
But  the  telegraph  company,  attempting  to  pass  under  the  railway 
in  such  a  manner  as  to  disturb  their  works,  was  held  liable  in 
trespass.^ 

2.  Parke,  B.,  in  giving  judgment,  said:  "Across  seems  there- 
fore different  from  under,  and  the  power  to  carry  '  across '  does 
not  enable  them  to  go  under.  It  may  be  that  this  prohibition 
would  not  apply,  if  the  railway  were  carried  over  a  highway,  at  a 
great  height,  for  then  the  highway  and  railway  might  be  considered 
independent  of  each  other." 

3.  In  a  recent  English  case'  it  was  decided,  that  a  telegraph 
company,  which  erected  posts  in  any  portion  of  the  highway,  al- 
though not  in  the  travelled  portion  of  it,  whereby  the  way  is  ren- 
dered in  any  respect  less  commodious  to  the  public  than  before,  is 

'•  Boston  &  Maine  Railw.  r.  City  of  Lawrence,  2  Allen,  107. 

"  Commonwealth  v.  Haverhill,  7  Allen,  523. 

'  Southeastern  Railw.  r.  European  &  Am.  Tel.  Co.,  9  Ezch.  363 ;  s.  c.  24 
Eng.  L.  &  Eq.  513. 

»  Post,  §§  130,  143,  164. 

'  Reg.  V.  United  Kingdom  Electric  Telegraph  Company,  9  Cox.  C.  C.  174 ; 
3  F.  &  F.  73,  8  Jut.  N.  S.  1163. 

26  •401 


402  CONSTRUCTION    OF   RAILWAYS.  CH.  XV. 

guilty  of  committing  a  nuisance  at  common  law  ;  and  the  fact  that 
the  jury  find  that  a  sufficient  space  for  the  public  use  remained  un- 
obstructed, will  not  afford  any  justification,  unless  the  act  is  done 
by  legislative  permission.^ 

*  The  case  is  of  so  much  importance  that  we  have  ventured  to  insert  the  lead- 
ing opinion  on  the  final  hearing  in  full  bench. 

Crompion,  J.  "The  defendants  were  indicted  for  erecting  their  posts  on  a 
high  *  road,  so  as  to  obstruct  the  public  in  the  use  thereof,  and  we  determined 
before  giving  judgment  to  hear  the  case  of  Regina  v.  Train,  thinking  it  possible 
that  the  same  question  might  there  arise,  or  that  something,  at  all  events,  throw- 
ing light  upon  it  might  be  elicited  during  its  progress.  Having  heard  that  case, 
there  is  nothing  to  prevent  our  giving  judgment  without  further  delay.  My 
brother  Martin  laid  down  two  propositions,  and  the  question  is,  whether  either 
of  them  constitutes  a  misdirection.  The  first  of  these  propositions  was  as  follows  : 
'  In  the  case  of  an  ordinary  highway,  although  it  may  be  of  a  varying  and  un- 
equal width,  running  between  fences,  one  on  each  side,  the  right  of  passage  or 
way  prima  facie,  and,  unless  there  be  evidence  to  the  contrary,  extends  to  the 
whole  space  between  the  fences ;  and  the  public  are  entitled  to  the  use  of  the 
entire  of  it  as  the  highway,  and  are  not  confined  to  the  part  which  may  be 
metalled  or  kept  in  order  for  the  more  convenient  use  of  carriages  and  foot  pas- 
sengers.' Now,  this  seems  to  us  a  very  proper  direction.  It  is  urged  by  Mr. 
O'Malley  that  this  ruling  is  not  applicable  to  a  place  where  there  is  a  considerable 
portion  of  greensward  on  either  side  of  the  metalled  road,  which  either  the  owner 
of  the  adjoining  freehold  or  the  lord  of  the  manor  would  be  entitled,  if  he  thought 
proper,  to  enclose.  This  is  the  first  of  two  objections  taken  on  behalf  of  the 
defendants.  But  it  seems  to  me  that  my  brother  Martin  carefully  guards 
against  that.  He  says,  that  prima  facie  the  space  between  the  fences  is  to  be 
taken  as  the  highway ;  and  this  seems  to  be  in  accordance  with  the  judgment  of 
Lord  Tenterden,  C.  J.,  in  Rex  v.  Wright,  3  B.  &  Ad.  681,  where  he  says:  'I 
am  strongly  of  opinion,  when  I  see  a  space  of  fifty  or  sixty  feet  through  which 
a  road  passes,  between  enclosures  set  out  under  an  act  of  Parliament,  that, 
unless  the  contrary  be  shown,  the  public  are  entitled  to  the  whole  of  that  space, 
though,  perhaps,  from  economy,  the  whole  may  never  have  been  kept  in  repair.' 
The  same  principle  is  involved  in  the  decision  in  Williams  v.  Wilcox,  and  my 
brother  Martin  seems  to  have  laid  down  the  law  in  unison  with  these  cases.  He 
says,  'th&t  prima  fa^ie,  and  in  absence  of  evidence  to  the  contrary,  the  public 
are  entitled  to  the  right  of  passage  over  the  whole,  and  are  not  confined  to  that 
part  which  is  metalled  for  the  better  convenience  of  travellers  and  traffic'  Mr. 
O'Malley  was  unable,  when  invited,  to  say  to  what  definite  portion  of  the  road, 
metalled  or  otherwise,  he  held  the  public  to  be  entitled.  He,  however,  con- 
tended that  the  posts  might  have  been  erected  on  what  was  in  fact  no  part  of  the 
highway,  such  as  a  rock,  or  something  of  that  kind,  which  might  occupy  part  of 
the  space  between  the  fences,  but  over  or  across  which  no  road  could  possibly 
exist.  But  this  would  not  be  a  part  of  the  highway  .any  more  than  a  house 
similarly  placed,  built  before  the  dedication  of  the  road.  We  think,  therefore, 
on  the  first  point,  the  direction  of  the  learned  judge  was  correct,  and  that  the 
right  of  the  public  extends  over  the  entire  highway. 
*402 


§110. 


DUTY  m  BEGARD   TO   SUBSTITUTED   WORKS. 


403 


•SECTION   VI 


Duty  in  regard  to  substituted  Works. 


1.  Bound  to  repair  bridge  substihtted for  Jbrd, 

or  to  carry  highway  over  railway. 

2.  The  tame  rule  has  been  applied  to  drains, 

tuimtituted  Jbr  others. 


The  extent  of  this  duty  as  applied  to 
bridge  and  approaches. 


§  110.  1.  Where  a  public  company,  as  a  navigation  company, 
under  the  powers  conferred  by  the  legislature,  destroyed  a  ford 

'*  The  second  proposition  laid  down  by  the  learned  judge  is  a  wider  one,  and  it 
remains  to  be  seen  whether  it  amounts  to  a  misdirection.  It  is,  '  that  a  perma- 
nent obstruction  erected  on  a  highway,  placed  there  without  lawful  authority, 
which  renders  the  way  less  commodious  than  before  to  the  public,  is  an  unlawful 
act,  and  a  public  nuisance  at*  common  law ;  and  that  if  the  jury  believed  that 
the  defendants  placed,  for  the  purposes  of  profit  to  themselves,  posts,  with  the 
•  object  and  intention  of  keeping  them  permanently  there,  in  order  to  make  a 
telegraphic  communication  between  distant  places,  and  did  permanently  keep 
them  there,  and  the  posts  were  of  such  size  and  dimensions  and  solidity  as  to 
obstruct  and  prevent  the  passage  of  carriages,  and  horses,  or  foot  passengers 
upon  the  parts  of  the  highway  where  they  stood,  the  jury  ought  to  find  the  de- 
fendants guilty  upon  this  indictment ;  and  that  the  circumstance  that  the  pK>8ts 
were  not  placed  upon  the  hard  or  metalled  part  of  the  highway,  or  upon  a  foot- 
path artificially  formed  upon  it,  or  that  the  jury  might  think  that  sufficient  space 
for  the  public  traffic  remained,  are  immaterial  circumstances  as  regards  the  legal 
right,  and  do  not  affect  the  right  of  the  crown  to  the  verdict.'  This  appears  to 
us  also  to  be  substantially  a  proper  direction,  inasmuch  as  the  real  question  is, 
whether  there  vras  a  practical,  as  distinguished  by  myself  in  Regina  r.  Russell, 
from  a  mathematical  nuisance.  My  brother  Martin  appears  distinctly  to  have 
raised  that  point,  by  saying  that  the  posts  must  not  be  of  such  size,  dimensions,  and 
solidity  as  to  obstruct  and  prevent  the  passage  of  carriages,  and  horses,  and  foot 
passengers  at  all.  In  Regina  v.  Russell,  the  jury  found  there  was  no  practical 
obstruction ;  but  where  there  is  a  practical  obstruction  on  a  highway,  by  which 
the  public  arc  prevented  from  using  it,  that  is  a  nuisance  according  to  all  defini- 
tions of  the  word,  and  it  makes  no  difference  whether  or  not  enough  be  still  left 
unobstructed  for  the  use  of  the  public ;  or  whether  the  obstruction  is  placed  on 
that  part  of  the  road  which  is  neither  metalled  nor  repaired  for  the  purpose  of 
traffic.  In  Rex  v.  Wright,  Lord  Tenterden  laid  it  down  that  the  public  are 
entitled  to  the  entire  space  on  either  side  of  the  highway,  as  he  says,  for  the 
benefit  of  air  and  sun.  We  must  take  it  now  that  the  jury  found  the  defendants 
guilty  upon  these  facts,  and  that  the  posts  were  of  such  size  and  solidity  as  to 
create  an  obstruction,  and  amount  to  a  nuisance.  It  was  further  objected  by 
Mr.  O'Malley  that  certain  of  the  post^  appeared  actually  to  have  stood  upon 
parts  of  the  road  which  were  inaccessible  to  travellers ;  but  supposing  this  to  be 

*  403,  404 


404  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

and  substituted  a  bridge,  it  was  held,  that  they  were  liable  to  keep 
the  bridge  in  repair.^  So,  too,  where  such  company  cut  through 
a  highway,  rendering  a  bridge  necessary  to  carry  the  highway 
over  the  cut,  the  company  are  bound  to  keep  such  bridge  in 
repair.2 

2.  So,  where  a  navigation  company  had  power  to  use  a  public 
drain,  by  substituting  another,  or  others,  it  was  held  that  the  com- 
pany were  bound  to  keep  in  repair  the  substituted  drains,  as  well 
as  to  make  them.^ 

3.  Under  the  English  statute,*  where  the  company  carried  the 
highway,  by  means  of  a  bridge,  over  the  railway,  it  is  bound  to 
maintain  the  bridge ;  and  all  the  approaches  thereto  in  repair,  and 
such  repair  includes  not  only  the  structure  of  the  bridge,  and  the 
approaches,  but  the  metalling  of  the  road  on  both.^  But  this  will 
not  include  the  road  beyond  where  it  may  properly  be  regarded  as 
forming  an  approach  to  the  bridge.^  And  the  same  rule  obtains 
here.  In  White  v.  Quincy,"  it  was  held  the  duty  of  the  company  as 
to  repair  extended  to  the  whole  structure,  which  they  had  found  it 
necessary  to  build  to  effect  their  purpose ;  even  where  it  extended 
beyond  the  boundaries  of  the  location  of  their  line. 

the  case,  it  would  be  no  use  to  the  company  to  have  these  few  isolated  posts 
left  standing  at  different  spots  along  the  line  of  road ;  and  if  they  wished  to  keep 
them,  they  should  have  contended  at  the  trial  that  some  of  these  posts  did  not 
come  within  the  rule  laid  down  by  the  learned  judge.  We  think,  therefore,  that 
with  respect  to  these  few  posts,  which  may  possibly  have  excepted  from  the  rule, 
it  would  be  useless  to  grant  a  rule." 

'  Rex  V.  Inhabitants  of  Kent,  13  East,  220 ;  Rex  v.  Inhabitants  of  Lindsey, 
14  East,  317. 

*  Rex  V.  Kerrison,  3  M.  &  Sel.  526.  This  duty  may  be  enforced  by  indict- 
ment. Regina  v.  Ely,  19  L.  J.  (M.  C.)  223.  And  the  same  obligation  rests 
upon  the  assignees  of  the  company.  Penn.  Railw.  Co.  v.  Duquesne  Borough, 
46  Penn.  St.  223. 

3  Priestly  ».  Foulds,  2  Railw.  C.  422 ;  2  Man.  &  Gr.  176. 

*  8  and  9  Vict.  c.  20. 

»  Newcastle,  &c.  Turnpike  Co.  v.  North  Staf.  Railw.  5  H.  &.  N.  160. 

«  W.  &  L.  Railw.  V.  Kearney,  12  Ir.  Com.  L.  224 ;  Fosberry  v.  Waterford  & 
Limerick  Railw.,  13  Ir.  Com.  Law,  494;  London  &  North  Western  Railw.  Co. 
c.  Skerton,  5  B.  «&  S.  659. 

'  97  Mass.  430.     See  also  Titcomb  v.  Fitchburg  Railw.,  12  Allen,  264. 


§  111.  NATURE   OP  WORKS.  —  MODE  OF   CONSTRUCTION.  406 


•SECTION    VII. 

Construction  of  Charter  in  rcf^ard  to  Nature  of  Works,  and 
Mode  of  Construction. 

§  111.  There  are  some  cases  in  regard  to  the  construction  of 
railway  works,  and  their  requisite  dimensions,  which  have  come 
under  the  consideration  of  the  courts,  and  where,  the  decisions 
are  of  little  precedent,  for  other  cases,  not  altogether  analogous, 
and  on  that  account  not  deserving  an  extended  analysis,  but 
wliich  nevertheless  we  scarcely  feel  justified  in  wholly  omitting 
here.^ 

'  Attorney-Greneral  v.  London  &  Southampton  Railw.,  9  Sim.  78 ;  8.  C.  1  Railw. 
C.  302.  This  case  is  in  regard  to  the  width  of  a  road  under  a  railway  bridge. 
Manchester  &  Leeds  Railw.  v.  Reg.  (in  error),  3  Q.  B.  528;  s.  c.  3  Railw.  C. 
633.  The  footpaths  are  not  to  be  regarded  as  any  part  of  the  requisite  width 
of  the  bridge.  Reg.  v.  Rigby,  14  Q.  B.  687 ;  8.  c.  6  Railw.  C.  479 ;  Reg.  v. 
London  &  Birmingham  Railw.,  1  Railw.  C.  317.  This  is  a  case  in  regard  to  the 
width  of  a  bridge  over  a  highway.  Reg.  r.  Birmingham  &  Gloucester  Railw.,  2 
Q.  B.  47 ;  2  Railw.  C.  694,  which  is  a  case  in  regard  to  the  width  of  the  ap- 
proaches to  a  bridge  across  a  railway.  Reg.  r.  Eastern  Counties  Railw.,  2  Q.  B. 
347,  569 ;  8.  c.  8  Railw.  C.  22,  as  to  the  right  to  lower  a  street,  in  order  to 
obtain  the  requisite  height  under  a  bridge,  notwithstanding  the  provisions  of  the 
local  paving  act.  Reg.  ».  Sharpe,  3  Railw.  C.  33,  as  to  the  right  to  erect  a 
brit^  at  a  different  angle  from  the  former  road.  Where  a  special  act  required 
a  company  to  strengthen  a  bridge  described  in  the  act,  held  that  they  might,  never- 
theless, pull  down  the  old  bridge  and  build  a  new  one.  Wood  v.  North  Stafford- 
shire Railw.,  1  McNagh.  &  G.  278 ;  Rex  r.  Morris,  1  B.  &  Ad.  441,  as  to  making 
a  railway  on  a  turnpike  road.  A  turnpike  road,  having  power  to  take  tolls  upon 
any  way  leading  out  of  their  road,  may  demand  tolls  of  passengers  crossing  their 
road  upon  a  railway  granted  subsequently.     Rowe  v.  Shilson,  4  B.  &  Ad.  726. 

Where  a  railway  company,  in  the  course  of  construction,  turned  a  stream  of 
water,  which  by  their  charter  they  might  do,  restoring  it  to  its  former  state,  as 
near  as  practicable,  and  the  new  channel  was  properly  guarded,  as  far  as  could 
be  perceived,  at  the  time  of  turning  it,  it  was  held,  that  the  company  were  not 
obliged  thereafter  to  watch  the  operation  of  the  water  and  take  precautions  to 
prevent  its  encroaching  upon  the  adjoining  lands.  Norris  r.  Vt.  C.  Railw.,  28 
Vt.  99.  See  also  Fitchburg  Railw.  r.  Grand  Junction  Railw.  &  Depot  Co., 
4  Allen,  198,  where  a  question  in  regard  to  apportioning  the  expense  of  a  work 
done  by  the  plaintiff,  for  the  mutual  benefit  of  the  parties,  in  conformity  with 
statutory  provisions,  is  considered,  and  numerous  exceptions  on  the  part  of  the 
defendant  are  overruled  by  the  court.  The  most  important  of  these  exceptions, 
and  which  the  court  regarded  as  no  sufficient  ground  of  defence,  are :  that  the 

•406 


406 


CONSTRUCTION   OF  RAILWAYS. 


CH.  XV. 


•SECTION    VIII. 


Terms  of  Contract.  — Money  Penalties,  —  Excuse  for  Non- 
Performance. 


1.  Contracts  Jbr  construction  assume  unusual 

forms. 

2.  Estimates  made  by  engineer. 

8.   Money  penalties,  liquidated  damages.   Full 

performance. 
4.  Excuses  for  non-performance. 
'  5.   Penalty  not  incurred,  unless  upon  strictest 
construction. 


6,  7.    Contractor  not  entitled  to  any  thing  fonr 

part-performance. 
n.  2.  Proper  construction  of  the  terms  used  in 

these  contracts. 
8.    Contract  for  additional  compensation  must 

be  strictly  performed. 


§  112.  1.  As  the  time  within  which  such  works  are  to  be  ac- 
complished is  often  limited  in  the  act,  and  as  the  manner  in  which 
the  work  is  done,  is  of  the  greatest  possible  importance  to  the 
public  safety,  the  law  sanctions  contracts  for  such  undertakings, 
in  forms  not  only  unusual,  but  which  might  not  be  strictly  binding 
perhaps  in  the  case  of  ordinary  contracts.  For  instance,  it  is  not 
uncommon  for  the  contract  to  impose  penalties  upon  the  contractor 
for  slight  deviations  from  the  terms  of  agreement,  and  to  secure  to 
the  company  the  absolute  right  to  put  an  end  to  the  contract, 
whenever  they  or  their  engineer  are  dissatisfied  with  the  mode  in 
which  the  work  is  done,  or  the  progress  made  in  it. 

2.  And  it  is  almost  universal,  in  these  contracts  in  this  country, 
to  refer  the  quality  and  quantity  of  the  work  done,  and  the  con- 
sequent amount  of  payments,  to  be  made  from  time  to  time,  to 
the  absolute  determination  of  an  engineer  employed  by  the  com- 
pany.i 

3.  The  penalties  which  these  contracts  provide,  either  absolutely, 

commissioner  appointed  under  the  statute,  in  supervising  the  work  and  appor- 
tioning the  cost,  conducted  with  partiality  towards  the  plaintiff,  and  under  their 
imdue  influence ;  and  that  the  value  of  the  defendant's  property  and  franchise 
was  diminished  by  the  work,  and  those  of  the  plaintiff  increased  thereby. 

*  Ranger  v.  Great  Western  Railw.,  18  Sim.  368 ;  1  Railw.  C.  1 ;  s.  c,  5  Ho. 
Lds.  72 ;  3  id.  298 ;  ante,  §  105.  And  where  the  contract  refers  the  umpirage 
to  the  company's  engineer,  by  name,  *' if  and  so  long  as  he  shall  continue  the 
company's  principal  engineer,"  it  was  held  that  the  reference  was  not  terminated 
by  the  amalgamation  of  this  company  with  another,  the  same  engineer  being 
continued  on  the  old  line,  but  not  as  the  principal  engineer  of  the  amalgamated 
company.  Wansbeck  Railw.  i7i  re.  Law  Rep.  1  C.  P.  269. 
•406 


§112.  PENALTIES.  —  EXCUSE   FOR  ^ON-PERFORMANCE.  407 

or  in  the  discretion  of  the  company's  engineer,  for  delay  *  in  the 
work,  are  to  be  regarded,  commonly,  in  the  nature  of  liquidated 
damages.*    To  entitle  the  party  to  recover  for  work  *  done  upon 

»  Ranger  p.  Great  Western  Rail w.,  5  Ho.  Lds.  72 ;  8.  c.  27  Eng.  L.  &  Eq.  61. 
In  regard  to  the  penalties  given  by  the  contract,  it  is  said  here  by  the  Lord  Chan- 
cellor :  *'  All  the  circumstances  which  have  been  relied  on  in  the  different  reported 
caries,  as  distinguishing  liquidated  damages  from  penalty,  are  to  be  found  here. 
The  injury  to  be  guarded  against  was  one  incapable  of  exact  calculation.  The  sum 
to  be  paid  is  not  the  same  for  every  default,  for  that  which  should  occasion  small 
as  for  that  which  should  cause  great  inconvenience,  but  one  increasing  as  the 
inconvenience  would  become  more  and  more  pressing;  and,  finally,  the  pay- 
ments are  themselves  secured  by  the  penalty  of  a  bond ;  and  this  is  hardly  con- 
,  sistent  with  the  notion  that  the  payments  secured  were  themselves  only  penal 
sums  to  secure  something  else.  For  these  reasons,  I  think  it  clear  that  these 
payments,  though  called  penalties,  are  in  truth  liquidated  damages,  agreed  on 
by  the  parties,  and  which  the  company  might  set  off  against  the  demand  of  the 
appellant  upon  them  under  the  contract.  But  then  the  appellant  contends  that 
the  company  never  had  a  title  to  recover  these  penalties,  because  the  delays  in 
respect  of  which  they  claimed  were  produced  by  the  harassing  and  vexatious 
conduct  of  the  respondents  themselves,  or  their  agents.  It  is  sufficient  on  this 
head  to  say,  that  the  appellant,  in  my  judgment,  wholly  fails  to  make  out,  in 
point  of  fact,  the  proposition  for  which  he  contends.  The  only  penalties  actually 
deducted  are  200/.  for  five  weeks'  delay  in  completing  tlie  headings  of  tunneb 
1  and  3  in  contract  1  B,  and  20Z.  for  delay  in  the  works  of  the  Avon  bridge. 
There  is  no  doubt  but  that  these  sums  were  due,  unless  the  appellant  could 
relieve  himself  by  showing  that  the  delay  had  been  forced  on  him  by  the  com- 
pany itself.     The  evidence  altogether  fails  to  satisfy  me  of  this." 

Where,  in  a  contract  between  the  original  contractors  for  building  a  railway 
and  the  sub-contractors,  it  was  provided,  that  the  work  should  be  subject  to  the 
supervision  and  control  of  the  engineer  of  the  company,  and  that  he  should 
make  monthly  estimates,  four-fiflhs  of  which  "  value"  should  be  paid  to  the  sub- 
contractors ;  and  when  the  work  was  completed,  a  final  estimate ;  the  monthly 
and  final  estimates  as  to  the  quantity,  character,  and  value  of  the  work  done, 
should  be  conclusive  between  the  parties ;  and  that  if  the  contractor  should  not 
truly  comply  with  his  part  of  the  agreement,  or  in  case  it  should  appear  to  the 
engineer  that  the  work  did  not  progress  with  sufficient  speed,  the  other  party 
was  to  have  power  to  annul  the  contract ;  and  the  unpaid  portion  of  the  work 
was  to  be  forfeited  by  the  sub-contractor  and  become  the  property  of  the  other 
party ; 

Held,  that  the  award  of  the  engineer  declaring  the  work  forfeited,  was  con- 
clusive, and  binding  on  the  sub-contractor ;  that  the  action  of  the  sub-contractor 
upon  the  contract  was  in  affirmance  of  the  contract,  and  that  he  could  not  there- 
fore impeach  its  stipulations. 

That  the  term  **  value,"  as  used  in  the  contract,  was  to  be  distinguished  from 
the  term  •*  price,"  fixed  for  the  different  classes  of  work,  and  that  the  engineer, 
in  making  monthly  estimates,  had  a  right  to  deduct  from  the  amount  of  work 
done  sufficient  to  bring  it  to  the  average  of  all  the  work  to  be  done,  and  is  not 

*  407,  408 


408  CONSTRUCTION   OP  RAILWAYS.  CH.  XV. 

construction  contracts,  he  must  show,  either  that  he  has  performed 
the  labor  according  to  the  contract,  or  that  the  other  party  has 
waived  strict  performance,  or  hindered  it.^ 

4.  But  the  party  may  excuse  full  performance  by  showing  that 
he  was  prevented  by  an  injunction  out  of  Chancery  at  the  suit  of  a 
third  party.*  Or,  that  the  parties  had  entered  into  a  new  contract 
for  the  same  work,  upon  different  terms.^ 

5.  Where  the  work  was  suspended  at  the  request  of  the  com- 
pany, with  the  view  to  a  new  location,  the  company  agreeing  to 
pay  the  plaintiff  $750  by  way  of  damages,  if  the  work  should  not 
be  resumed  within  two  years,  and,  if  it  was,  the  plaintiff  to  pro- 
ceed with  the  work  at  the  prices  stipulated,  upon  those  sections 
not  altered ;  the  route  being  altered  as  to  some  of  the  section », 
upon  which  the  defendants  resumed  within  the  two  years,  employ- 
ing others  to  do  the  work,  without  giving  notice  to  plaintiff;  held 
that  the  plaintiff  could  not  recover  the  damages  agreed,  as  the 
work  was  resumed  within  the  two  years,  but  that  the  plaintiff  was 
entitled  to  damages  for  not  being  employed  to  do  the  work.^ 

6.  Where,  by  the  terms  of  the  contract,  a  proportion  of  the  sum 

bound  to  allow  the  sub-contractor  the  price  stipulated  in  the  contract,  for  work 
of  this  description. 

If  the  company  withheld  unjustly  funds  due  the  sub-contractor,  they  could  not 
fairly  take  advantage  of  the  forfeiture  declared  for  want  of  prosecution  of  the 
work.  But  the  retention  of  the  20  per  cent  in  case  of  forfeiture,  is  intended  as 
the  measure  of  reparation  for  the  failure  to  perform  the  work  according  to  the 
contract,  and  not  as  a  mere  penalty. 

The  payment  after  the  forfeiture,  by  one  of  the  original  contractors,  of  the 
hands  who  had  been  employed  on  the  works  by  the  sub-contractor,  and  furnish- 
ing money  to  carry  on  the  work,  is  not  a  waiver  of  the  forfeiture,  especially  if 
he  was  then  ignorant  that  the  work  had  been  forfeited.  Faunce  v.  Burke,  16 
Penn.  St.  469.  In  English  contracts  for  constructing  railways,  it  is  common  to 
provide  for  the  use  of  the  contractor's  plant,  in  case  of  the  company  putting  an 
end  to  the  contract,  and  for  the  sale  of  the  same,  and  crediting  the  money  to  the 
contractor.  But  this  construction  will  not  be  adopted  unless  loss  or  expenses 
have  been  occasioned,  for  which  the  contractor  is  responsible.  Garrett  ».  Salis- 
bury &  Dorset  J.  Railw.,  Law  Rep.  2  Eq.  358. 

^  Andrews  v.  The  City  of  Portland,  35  Me.  475.  And  it  was  held  here,  that 
part  pa}'ment,  under  the  contract,  after  the  contractor  had  failed  in  strict  pei^ 
formance,  was  no  waiver,  unless  the  failure  was  known  to  the  employer  at  the 
time  of  payment. 

♦  Whitfield  V.  Zellnor,  24  Miss.  663. 

*  Howard  v.  The  Wilmington  &  Susquehannah  Railw.,  1  Gill,  311. 

•  Fowler  v.  Kennebec  &  Portland  Railw.,  31  Me.  197. 


§113. 


EXECUTION.  —  EXTRA    WORK.  —  DEVIATIONS. 


409 


earned  is  to  be  paid  monthly,  and  the  remainder  reserved,  *  as 
security  for  the  fulfilment  of  the  contract,  it  was  held,  that  nothing 
was  due  till  the  day  of  payment,  which  could  be  attached  by  trus- 
tee process.^ 

7.  And  where,  in  such  case,  the  company  have  the  power  to 
determine  the  contract,  and  tiie  reserved  fund  is  thereby  to  be 
forfeited,  and  the  company  do  so,  after  the  contractor  has  worked 
one  month  and  part  of  another,  and  has  received  the  proportion  of 
payment  for  the  first  month,  it  was  held  nothing  was  due  to  the 
contractor.^ 

8.  Where  a  railway  company,  after  making  a  contract  for  the 
construction  of  its  road,  became  embarrassed  and  was  unable  to 
make  payments  to  the  contractor,  and  the  president,  who  was  a 
stockholder,  and  extensively  interested  in  the  success  of  the  enter- 
prise, made  an  additional  agreement  with  the  contractor  that  he 
would  give  him  his  notes  to  the  amount  of  $10,000,  if  the  work 
were  completed  by  a  day  named,  it  was  held,  that  he  was  not  liable 
upon  the  agreement  unless  the  contractor  performed  his  part  of 
the  agreement  by  the  day  named.  The  notes  were,  by  the  terms 
of  the  agreement,  to  go  in  part  payment  of  what  was  due  from  the 
company,  and  the  new  agreement  was  not  to  affect  the  subsisting 
contract  with  the  company.* 

SECTION    IX. 
Form  of  Execution.  —  Extra  WorTc.  —  Deviations. 


1.  No  particular  farm  of  contract  requitite 

generatly. 

2.  But  the  expresa  requirements  of  the  charter 

mutt  be  complied  with. 
8.   Extra  work  cannot  be  recovered  of  the  com- 


pany, unleu  done  upon  the  terms  sped- 
fed  in  contract. 
4.   If  the  comjxtntf  have  the  ben^  of  work 
are  liable. 


§  113.  1.  No  particular  form  of  contract  is  requisite  to  bind  the 
company,  unless  where  the  charter  expressly  requires  it.^  *  And 
although  there  seems  still  to  be  a  failing  effort  in  the  English 

^  Williams  r.  Androscoggin  &  Kennebec  Kailw.,  36  Me.  201. 

'  Hennessey  r.  Farrell,  4  Cush.  267. 

•  Slater  r.  Emerson,  19  How.  (U.  S.)  224. 

'  Post,  §§  ISO,  143,  164.  Corporations  cannot  enter  into  partnerships,  bat 
two  or  more  corporations  may  become  jointly  bound  by  the  same  contract. 
Marine  Bank  of  Chicago  v.  Ogden,  29  111.  248. 

•  409,  410 


410  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

courts  to  maintain  the  necessity  of  the  contracts  of  corporations 
being  under  seal,^  it  is  certain  that  the  important  business  trans- 
actions of  daily  occurrence,  in  both  that  country  and  here,  where 
no  such  formality  is  resorted  to  by  business  corporations,  in  mat- 
ters of  contract,  and  where  to  look  for  any  such  solemnity  would 
be  little  less  than  absurd,  almost  of  necessity  drive  the  courts  of 
England  to  disregard  the  old  rule  of  requiring  the  contracts 
of  corporations  to  be  made  under  the  corporate  seal.^ 

2.  But  when  the  charter  of  the  corporation  requires  any  par- 
ticular form  of  authenticating  their  contracts,  it  cannot  be  dispensed 
with.  And  where,  by  the  charter  of  a  railway  company,  the  direct- 
ors were  authorized  to  use  the  common  seal,  and  all  contracts  in 
writing,  relating  to  the  affairs  of  the  company,  and  signed  by  any 
three  of  the  directors,  were  to  be  binding  on  the  company ;  and 
the  company  entered  into  a  contract,  not  under  seal,  by  their 
secretary,  to  complete  certain  works,  and,  after  part  performance, 
the  contractor  was  dismissed  by  the  company,  it  was  held  he  could 
not  recover  the  value  of  the  work  done.^ 

*  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  815.  But  see  Beverly  v.  Lincoln 
Gas  Light  &  Coke  Co.,  6  Adol.  &  Ellis,  829  ;  Dunston  v.  The  Imperial  Gas  Co., 
3  B.  &  Ad.  125.  Tindal,  Ch.  J.,  in  Gibson  v.  East  India  Co.,  5  Bing.  (N.  C.) 
262,  by  which  it  seems  that  the  English  courts  except  from  the  operation  of  the 
rule  only  such  transactions  of  business  corporations  as  could  not  reasonably  be 
expected  to  be  done  under  seal.  But  see  Bank  of  Columbia  r.  Patterson,  7 
Cranch,  299,  and  2  Kent,  Comm.  289,  291,  and  notes,  where  it  is  said  the  old 
rule  is  condemned,  and  English  and  American  cases  cited  and  commented  upon. 
Post,  §  143  ;  United  States  Bank  v.  Dandridge,  12  ^Vheat.  64 ;  Bank  of  the  Me- 
tropolis V.  Guttschlick,  14  Pet.  19 ;  Norwich  &  Worcester  Railw.  v.  Cahill,  18 
Conn.  484 ;  San  Antonio  ».  Lewis,  9  Texas,  69.  See,  also,  Weston  v.  Bennett, 
12  Barbour,  196  ;  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  Serg.  74. 

'  Diggle  V.  The  London  &  Blackwall  Railw.,  5  Exch.  442 ;  s.  c.  6  Railw.  C.  590. 
It  is  said  here  that  a  contract,  to  be  binding  on  a  corporation  when  not  under  seal, 
must  be  one  of  necessity,  or  of  too  frequent  occurrence,  or  too  trivial,  to  be  made 
under  seal.  In  a  recent  case  in  the  Court  of  Exchequer,  Williams  v.  Chester  & 
Holyhead  Railw.,  15  Jur.  828 ;  8.  c.  5  Eng.  L.  &  Eq.  497,  Martin,  B.,  thus  com- 
ments upon  the  rule  of  evidence  in  regard  to  implied  contracts  of  corporations. 
"  Persons  dealing  with  these  companies  should  always  bear  in  mind,  that  such 
companies  are  a  corporation,  a  body  essentially  different  from  an  ordinary-  part- 
nership or  firm,  for  all  purposes  of  contracts,  and  especially  in  respect  of  evidence 
against  them  on  legal  trials;  and  should  insist  upon  these  contracts  being  by 
deed  under  the  seal  of  the  company,  or  signed  by  directors  in  the  manner  pre- 
scribed by  the  act  of  parliament.  There  is  no  safety  or  security  for  any  one 
dealing  with  such  a  body,  on  any  other  footing.  The  same  observation  also  ap- 
plies in  respect  of  any  variation  or  alteration  in  a  contract  which  has  been  made." 


§113.  EXECUTION.  —  EXTRA  WORK.  —  DEVIATIONS.  411 

*  3.  But  where  the  contract  contains  express  provisions  that  no 
allowance  shall  be  made  against  the  company  for  extra  work, 
unless  directed  in  writing  under  the  hand  of  the  engineer  or  some 
other  person  designated,  or  unless  some  other  requisite  formality 
be  complied  with,  the  party  who  performs  extra  work,  upon  the 
assurance  of  any  agent  of  the  company  that  it  will  be  allowed  by 
the  company,  without  the  requisite  formality,  must  look  to  the 
agent  for  compensation,  and  cannot  recover  of  the  company,  either 
at  law  or  in  equity.*  So,  under  the  English  General  Company 
Acts,  where  the  directors  are  authorized  to  contract  on  the  part  of 
the  company,  although  not  in  writing,  when  such  contracts  would, 
if  entered  into  by  private  persons,  be  binding  in  that  form,  three 
directors  being  a  quorum  for  that  purpose,  it  was  held,  that  the 
mere  fact  that  extra  work  was  done  with  the  approbation  of  the 
company's  engineer,  the  special  *  contract  requiring  written  direc- 
tions for  all  the  work,  had  no  tendency  to  prove  a  contract  binding 
the  company.^ 

But  see  post,  §  143,  and  cases  cited.  And  where  the  assistant  engineer  upon 
a  railway,  having  charge  of  the  construction  of  a  section  of  the  road,  becoming 
dissatisfied  with  the  contractor,  dismissed  him,  and  assumed  the  work  himself, 
agreeing  with  the  workmen  to  see  them  paid,  it  was  held  his  subsequent  decla- 
rations could  not  be  admitted,  to  charge  the  company  for  supplies  furnished  the 
contractors,  on  the  ground  that  they  were  not  made  in  the  course  of  the  per- 
formance of  his  duty  as  agent  of  the  company.  Stiles  v.  The  Western  Railw., 
8  Met.  44 ;  s.  c.  1  Am.  Railw.  C.  897.  See  also  Underwood  r.  Hart,  23  Vt. 
120,  where  the  subject  of  the  admissions  of  agents  is  discussed,  and  the  cases 
revised. 

If  a  contract  under  seal  be  enlarged  by  parol  and  subsequently  performed,  or 
if  the  terms  of  the  contract  under  seal  be  varied  by  parol,  the  proper  remedy  is 
by  an  action  of  assumpsit.  Sherman  v.  Vermont  Central  Railw.,  24  Vt.  347; 
Barker  v.  Troy  &  Rutland  Railw.,  27  Vt.  774.  In  Childs  r.  The  Somerset 
and  Kennebec  Railw.  in  the  Circuit  Court  of  the  United  States,  before  Mr. 
Justice  Curtis,  20  Law  Rep.  661,  it  was  held,  where  the  plaintiff,  by  special 
contract,  agreed  to  build  certain  bridges  and  depots  for  the  defendant  corpora- 
tion, for  which  he  was  to  be  paid  partly  in  cash  and  partly  in  shares  of  their  capi- 
tal stock,  and  in  the  progress  of  the  enterprise  it  became  necessary  to  do  much 
extra  work,  and  furnish  materials  not  provided  for  in  the  special  contract ;  that 
the  plaintiff*  was  entitled  to  recover  the  whole  value  of  the  extra  work  and  mate- 
rials thus  furnished  in  money,  upon  an  implied  assumpsit,  and  that  the  agree- 
ment to  take  pay  in  shares  did  not  extend  to  this  part  of  the  work. 

♦  Kirk  V.  The  Guardians  of  the  Bromley  Union,  2  Phil.  640;  Thayer  r.  The 
Vermont  Central  Railw.,  24  Vt.  440;  Herrick  r.  Same,  27  Vt.  673;  Van- 
derwerker  r.  Same,  27  Vt.  125,  130. 

'  Homersbam  c.  Wolverhampton  Waterworks  Co.,  6  Exch.  137 ;  s.  c.  6  Railw. 

•  411,  412 


412  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

4.  In  one  very  well-considered  case  ®  upon  the  subject  of  extra 
work,  not  authorized  in  the  manner  specified  in  the  contract,  it 
is  said  by  the  Vice-Chancellor :  "  From  what  I  have  been  in- 
formed of  the  course  taken  at  law  in  these  cases,  it  is  this :  If, 
in  an  action  by  a  contractor,  it  appears  that  the  company  have 
the  benefit  of  the  work,  done  with  their  knowledge,  the  court 
of  law  does  not  allow  the  company  to  take  the  benefit  of  that 
work  without  paying  for  it,  although  in  covenant  (or  any  action 
upon  the  contract)  the  contractor  cannot  recover."  This  may  be 
in  accordance  with  the  general  rules  of  law  applicable  to  the  sub- 
ject.''' 

SECTION  X. 

If  one  Party  repudiate  the  Contract^  the  other  may  sue  presently. 
—  Inevitable  Accident. 

1.  Party  repudiating  excuses  the  other.  1  3.   President  cannot  bind  the  company. 

2.  New  contract  valid.  \  4.   Effect  of  inevitable  accident. 

§  114.  1.  Questions  often  arise  in  regard  to  the  right  of  a  party 
to  sue  for  damages  before  the  time  for  payment  arrives,  and  before 
he  has  fully  performed  on  his  part.  But  it  seems  now  to  be  well 
settled,  that  where  one  party  absolutely  repudiates  the  contract  on 
his  part,  he  thereby  exonerates  the  other  from  further  performance, 
and  exposes  himself  presently  to  an  action  for  damages.^ 

C.  790.  Pollock,  Ch.  B.,  said:  "  The  company  is  not  bound  by  the  mere  order 
of  the  engineer,  or  by  the  contract  with  one  director." 

8  Nixon  V.  Taff  Vale  Railw.,  7  Hare,  136.     But  see  post,  §§  130,  143. 

''  Dyer  v.  Jones,  8  Vt.  205;  Gilman  v.  Hall,  11  id.  511.  But,  in  many 
cases,  the  work  is  done  by  a  sub-contractor,  and  enures  to  the  benefit  of  the 
original  contractor,  as  in  Thayer  v.  Vermont  Central  Railw.,  24  Vt.  440,  and 
would  not  therefore  give  any  right  of  action  against  the  company,  although  in 
one  sense  they  may  put  the  work  to  their  own  use,  and  so  may  be  said  to  have 
the  benefit  of  it,  to  some  extent. 

>  Cort  V.  The  Ambergate,  Not.  B.  &  E.  J.  Railw.,  17  Q.  B.  127  ;  s.  c.  6  Eng. 
L.  &  Eq.  230 ;  Planche  «.  Colburn,  8  Bing.  14 ;  Hochster  v.  De  Latour,  2  El.  & 
Bl.  678 ;  8.  c.  20  Eng.  L.  &  Eq.  157.  But  in  an  action  to  recover  damages  on 
such  contract,  the  jury  are  not  to  go  into  conjectured  profits  resulting  from  a  sub- 
contract very  much  below  what  the  plaintiff  was  to  be  paid,  but  only  the  difference 
between  the  contract  price  and  the  value  of  doing  the  work  at  the  time  of  the 
breach,  can  be  given.  Masterton  v.  Mayor  of  Brooklyn,  7  Hill,  61.  The  re- 
pudiation of  a  contract  by  the  company,  followed  by  seizure  of  the  works,  under 


§114.  REPUDIATION. —  INEVITABLE.  ACCIDENT.  413 

•  2.  Where  the  contract  is  unconditionally  repudiated  by  one 
party,  before  it  is  fully  performed,  it  is  competent  for  the  otlier  to 
stipulate  for  its  performance,  upon  diflferent  terms,  no  doubt.  And 
such  stipulation,  although  not  under  seal,  would  probably  be  re- 
garded as  made  upon  a  valid  and  sufficient  consideration  ;  and  if 
made  by  an  agent  of  the  former  party  to  tlie  contract,  but  who  had 
not  authority  to  bind  his  principal  to  such  contract,  it  would 
nevertheless  be  binding  upon  the  agent  and  other  party  contract- 
ing, and  would  not  be  required  to  be  in  writing,  as  it  would  be  an 
original  and  not  a  collateral  undertaking. 

3.  But  it  has  been  held,  that  after  a  railway  company  has  en- 
tered into  a  written  contract,  for  the  performance  of  certain  work, 
the  promise  of  its  president  to  allow  additional  compensation  to 
the  contractors,  for  the  same  work,  is  without  consideration  and 
not  binding  upon  the  company .^ 

4.  A  very  singular  question  arose  in  a  late  English  case.^  The 
plaintiff  agreed  to  make  and  erect  on  premises,  under  the  control 
of  the  defendants,  certain  machinery,  and  the  latter  were  to  pro- 
vide all  necessary  brick  work,  <fec.  Before  the  works  were  com- 
pleted the  buildings  in  which  the  work  was  to  be  done  were 
destroyed  by  fire.  It  was  held  the  plaintiffs  were  entitled  to  recover 
for  the  work  already  done  by  them  before  the  fire,  and  that  it  was 
an  implied  term  of  the  contract  that  the  defendant  should  provide 
the  buildings  in  which  the  work  was  to  be  done,  and  enable  the 
plaintifis  to  do  their  part  of  the  work  and  therefore  that  the  defend- 
ant was  not  relieved  by  the  occurrence  of  the  fire ;  as  a  party  who 
contracts  to  do  a  thing  is  bound  to  carry  out  his  engagement,  or  to 
make  compensation,  notwithstanding  he  is  prevented  by  inevitable 
accident. 

order  of  a  court,  will  be  held  a  waiver  of  their  right  to  proceed  by  arbitration 
under  the  same  contract  on  all  matters  involved  in  the  question  of  the  legality 
of  the  seizure.     Putney  r.  Cape  Town  Railw.,  Law  Rep.  1  Eq.  84. 

»  Colcock  c,  Louisville  Railw.,  1  Strobhart,  829 ;  Nesbitt  v.  L.  C.  &  C.  Railw., 
2  Speers,  697.  The  controversy  here  is  in  regard  to  hard  pan  excavation. 
And  as  the  plaintiff  contracted  to  do  all  the  work  on  the  road,  and  to  construct 
the  road-bed,  and  his  contract  only  provided  for  earth  and  rock  excavation, 
he  IB  bound  to  accept  his  estimates  under  the  contract,  and  especially,  after 
having  done  so,  he  cannot  claim  extra  compensation  for  excavating  hard  pan, 
even  if  he  show  that,  by  usage,  "  earth"  has  a  technical  meaning,  and  does  not 
include  hard  pan. 

'  Appleby  v.  Meyers,  Law  Rep.,  1  C.  P.  616;  8.  c.  12  Jur.  N.  S.  600. 

*  413 


414  CONSTRUCTION   OP  RAILWAYS.  CH.  XV. 


•SECTION  XI. 

Decisions  of  Referees  and  Arbitrators  in  regard  to  construction 

Contracts. 

1.  Award  valid  if  substantially  correct.  I  2.    Court  will  not  set  aside  award,  where  it 

I  does  substantial  justice. 

§  115.  1.  The  general  rule  of  law,  in  regard  to  the  decisions  of 
arbitrators  and  referees,  by  which  they  have  been  held  binding 
upon  the  parties,  although  not  made  strictly  according  to  the  tech- 
nical rules  of  law,  if  understandingly  made,  and  exempt  from  fraud 
or  partiality,  has  been  sometimes  applied  to  contracts  for  construc- 
tion of  railway  works,  the  settlement  of  which  has  been  determined 
by  an  umpire.  As  where  the  contract  reserved  the  right  to  the 
company  to  alter  the  gradients  of  the  road,  and  to  substitute  piling 
for  embankment  without  extra  allowance.  These  alterations  were 
made,  and  thus  increased  the  expense  to  the  contractors.  The 
final  settlement  being  made  by  referees,  to  whom  "  all  matters  in 
dispute,  with  the  contract  as  a  basis  of  settlement,"  were  referred, 
and  they  having  allowed  the  contractor  compensation  for  this  in- 
creased expense,  it  was  held  to  be  within  the  power  conferred  upon 
the  referees. 1 

2.  So,  too,  where  the  contract  specified  a  price  for  eartli  excava- 
tion, and  another  for  rock  excavation,  but  nothing  was  said  of 
"  hard  pan,"  a  good  deal  of  which  occurred  in  the  course  of  the 
work,  which  was  admitted  to  be  more  expensive  than  the  ordinary 
earth  excavatioji  ;  the  whole  subject  was  referred,  and  the  plain- 
tiff" claimed  in  his  specification  thirty  cents  per  yard  for  excavating 
hard  pan,  and  the  referees  allowed  him  fifty  cents  on  trial.  The 
defendants  objected  to  the  allowance,  being  more  than  the  claim. 
But  the  court  said,  where  the  testimony  was  received  without 
objection,  and  showed  the  party  entitled  to  *  recover,  beyond  his 
specification,  the  court  will  not  set  aside  the  report,  or  grant  a 

'  Porter  ».  Buckfield  Branch  Railw.,  32  Maine,  639.  In  this  case  the  con- 
tract provided  for  payment  of  a  portion  of  the  price  of  the  work  in  the  stock  of 
the  company,  and  the  arbitrators  directed,  that  the  same  proportion  of  their 
award  should  be  paid  by  issuing  certificates  of  stock,  and  the  award  was  held 
valid  in  this  particular  also. 
*  414,  416 


§116. 


DECISIONS   OP   company's   ENGINEERS. 


415 


new  trial,  where  it  is  apparent  the  party  has  not  recovered  more 
than  what  he  is  fairiy  entitled  to.'* 


SECTION  XII. 


Dedsions  of  Company^s  Engineers. 


1.  Estimates  for  advances,  mere  approxima- 

tions, under  English  practice. 

2.  But  where  the.  engineer's  estimates  are  final, 

can  only  be  set  aside  for  partiality  or 
mistake. 
8.    Contractor  bound  by  practical  construction 
of  the  contract. 


4.  Estimates  do  not  conclude  matters,  not  n- 
ferred. 

6.  If  contractor  consent  to  accept  pay  in  de- 
preciated orders,  he  is  bound  by  it. 

6.  Right  of  appeal  lost  by  acquiescence. 

7.  Engineer  cannot  delegate  his  authority. 

8.  Arbitrator  must  notify  parties,  and  act 

bon&  fide. 


§  116.  1.  The  English  contracts  for  railway  construction  gen- 
erally contain  a  provision  for  referring  the  final  settlement  with 
the  contractor  to  an  indifferent  board  of  arbitrators,  or  one  selected 
by  the  parties  respectively,  with  the  umpirage  of  a  third  party  in 
case  of  disagreement.^  Under  such  contracts  the  provision  in 
regard  to  monthly  or  semi-monthly  estimates  is  such,  that  they  are 
understood  to  be  mere  approximations,  and  it  is  only  equivalent  to 
a  provision,  that  the  company  shall  advance,  from  time  to  time  as 
the  work  progresses,  a  stipulated  proportion  of  the  work,  which 
they  shall,  by  their  engineer,  adjudge  to  be  done.  All  that  is 
requisite  to  the  validity  of  such  estimates  is,  that  they  were  made 
bo7ia  fide,  and  with  the  intention  of  acting  according  to  the  exigency 
of  the  contract.^ 

•  Du  Bois  p.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  834. 

>  Ranger  r.  Great  Western  Railw.,  6  Ho.  Lds.  72 ;  8.  c.  27  Eng.L.  &  Eq.  85,46. 

So  where  in  a  canal  contract  it  is  provided,  that  the  engineer  •'  shall  in  all 
cases  determine  the  amount  or  quality  of  the  several  kinds  of  work  "  to  be  done, 
and  the  compensation  therefor,  and  either  party  had  the  right  to  compel  an  in- 
different reference,  where  he  felt  aggrieved  by  the  decision  of  the  engineer, 
♦•  to  investigate  and  determine  all  questions  that  may  arise  relating  to  compensa- 
tion for  work  done  under  this  contract ; "  it  was  held,  this  umpirage  only  ex- 
tended to  the  final  account  of  the  engineer.     People  v.  Benton,  7  Barb.  209. 

Under  a  contract  where  the  company  stipulated  to  pay  the  contractor  ninety 
per  cent  of  work  done,  according  to  the  engineer's  estimate ;  and  the  engineer 
had  the  right  to  declare  the  contract  abandoned,  and  in  that  event  the  ten  per 
cent  became  forfeited,  and  the  engineer  did  so  declare ;  it  was  held  that  this  did 


416  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

*  2.  But  where  the  contract  contains  provisions  referring  the 
estimate  of  the  quantity  and  quality  of  the  work  absolutely  to  the 
determination  of  the  company's  engineer,  or  any  particular  party, 
and  provides,  as  is  not  uncommon  in  this  country,  that  his 
decision  shall  be  final,  no  relief  from  his  determination  can  ordi- 
narily be  obtained,  even  in  a  court  of  equity,  unless  upon  the 
ground  of  partiality,  or  obvious  mistake,  which  latter  is  held  to 
apply  rather  to  the  quantity,  than  the  quality  of  the  work,  this 
being  purely  matter  of  judgment  and  discretion,  and  which  was 
intended  to  be  concluded  by  the  opinion  of  the  arbitrator.^  But 
in  an  English  case^  before  Vice-Chancellor  Stuart,  where  in  a 
building  contract  the  corporation  reserved  the  power  to  determine 
the  contract,  which  they  afterwards  exercised,  and  it  was  stipulated 
that  any  dispute  or  difference  which  might  arise  between  the  con- 
tracting parties  should  be  referred  to  and  settled  by  the  engineer, 
that  it  should  not  be  competent  for  either  party  to  except  at  law 
or  equity  to  his  determination,  and  that  without  the  certificate  of 
the  engineer  no  money  should  be  paid  to  the  plaintiffs  ;  "  it  appear- 
ing that  the  engineer  had  never  refused  to  discharge  his  duty 
according  to  the  contract,  and  had  nothing  to  disqualify  him  to 
act,  and  was  ready  and  willing  to  proceed  and  determine  all  *  mat- 
ters at  issue  between  the  parties,  it  was  held  that  there  was  no 
ground  for  the  equitable  interference  of  the  court. 

3.  If  the  contractor  acquiesce  in  a  particular  construction  of  his 

not  absolve  the  company  from  the  payment  of  the  ninety  per  cent  upon  the  work 
done  by  the  contractor,  before  the  contract  was  declared  abandoned.  Ricker  v. 
Fairbanks,  40  Maine,  43. 

*  Herrick  ».  The  Vermont  Central  Railw.,  27  Vt.  673;  Kidwell  v.  Bait.  & 
Ohio  Railw.,  infra;  Alton  Railw.  v.  Northcott,  15  111.  49.  In  this  case  it  was 
held  that  the  estimate  of  the  umpire  will  not  bind  the  parties,  if  based  on  an 
erroneous  view  of  the  contract. 

So  a  court  of  equity  may  correct  the  mistakes  of  the  engineer,  although  the 
contract  stipulates  that  his  decision  shall  be  final.  Mansfield  &  Sandusky  Railw. 
V.  Veeder,  17  Ohio,  385.  So,  too,  where  the  engineer  proved  to  be  a  stock- 
holder in  the  company.  Milnor  v.  The  Georgia  Railway  «fe  Banking  Co.,  4  Ga. 
385.  And  in  Kems  v.  O'Reilley,  Leg.  Int.  Aug.  31,  1866,  it  was  decided  that 
the  award  of  an  engineer  between  contractor  and  sub-contractor  is  final.  And 
in  Leech  v.  Caldwell,  id.  Nov.  16,  1866,  it  was  held,  that  where  the  sub- 
contractor covenanted  to  abide  the  decision  of  the  engineer  of  the  work  in  any 
dispute  arising  on  the  contract,  the  alleged  fraud  of  th6  engineer  did  not  affect 
the  covenant. 

'  Scott  V.  Corporation  of  Liverpool,  31  Law  Times,  147,  1858. 
*  416,  417 


§  116.  DECISIONS  OP  company's   ENGINEERS.  417 

contract,  and  allow  his  estimates,  from  time  to  time,  to  be  made 
npoa  such  basis,  ho  will  be  bound  by  it  thereafter.* 

4.  Where  the  contract  specifies  a  price  for  rock  excavation,  and 
another  for  ordinary  earth  excavation,  and  in  the  course  of  the 
work  a  large  quantity  of  hard  pan  was  excavated,  for  which  no 
provision  was  made  in  the  contract,  and  the  other  party  conceded 
that  compensation  was  due,  beyond  the  price  fixed  in  the  contract 
for  ordinary  earth  excavation,  it  was  decided  that  the  contractor 
might  recover  upon  a  quantum  meruit  count.  And  where  the  con- 
tract also  provided  that  the  engineer  should  finally  determine  all 
questions  necessary  to  the  final  adjustment  of  the  contract,  this  did 
not  render  the  engineer's  estimate  conclusive,  as  to  the  sum  to  be 
paid  for  excavating  hard  pan.^  These  points  are  both  decided, 
mainly,  it  is  presumed,  upon  the  concession  of  the  defendant,  that 
the  hard  pan  excavation  was  a  matter  altogether  outside  of  the 
contract.  Otherwise  it  might  seem  difficult  to  maintain  their  en- 
tire consistency  with  other  decided  cases. ^ 

5.  Where  the  contract  gives  the  engineer  power  to  stop  the 
work,  when  the  means  of  carrying  it  forward  fail,  and  he  informed 
the  contractor  it  could  not  proceed  unless  he  would  receive  his 
monthly  pay  in  orders,  which  were  at  a  discount,  and  the  contract- 
or consented  to  receive  them,  he  is  not  entitled  to  recover  of  the 
company  the  amount  of  such  depreciation.^ 

6.  And  although  the  contractor,  by  the  contract,  had  the  power 
to  refuse  to  abide  by  the  final  estimates  of  the  engineer,  *  yet  if 
he  submitted  to  him  his  charges  for  the  work  done,  and  made 
no  objection  to  his  making  up  the  final  estimate,  he  is  bound 
thereby.'^ 

7.  Where  in  a  contract  for  work  upon  a  railway  it  was  stipu- 
lated that  the  work  should  be  measured  by  defendant's  engineer 

*  Kidwcll  r.  The  Baltimore  &  Ohio  Railw.,  11  Grattan,  676.  See  also  Com- 
monwealth r.  Clarkson,  3  Penn.  St.  277. 

*  Dubois  p.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  334;  8.  c.  15  id.  87. 
See  8.  c.  4  Wend.  285.  But  see  ante,  §  114;  Nesbitt  r.  L.  C.  &c.  Railw.,  2 
Speers,  697,  where  hard  pan  seems  to  be  regarded  as  earth  excavation,  unless 
there  is  some  special  provision  in  the  contract ybr  estimating  it  otherwise. 

*  Morgan  v.  Bimie,  9  Bing.  672.  See  also  Sherman  v.  The  Mayor  of  New 
York,  1  Comst.  816,  820. 

^  Kidwell  V.  The  Baltimore  &  Ohio  Railw.,  11  Grattan,  676.  See  also  Com- 
monwealth r.  Clarkson,  3  Penn.  St.  277,  upon  the  general  subject  of  the  con- 
clusiveness of  the  engineer's  estimate. 

27  •  418 


418 


CONSTRUCTION   OP  RAILWAYS. 


CH.  XT. 


or  agent,  which  should  be  final  and  conclusive,  it  was  held  that 
such  person  could  not  delegate  his  authority,  but  that  it  was 
indispensable  that  he  should  himself  make  the  admeasurement. 
But  in  making  it,  it  is  not  necessary  that  he  should  give  previous 
notice  to  the  parties  to  enable  them  to  be  present.^ 

8.  But  if  such  agent  is  to  make  an  estimate  of  certain  expenses 
to  be  allowed  the  plaintiff,  and  he  proceeds  to  do  so,  in  the  absence 
of  plaintiff  and  without  notice  to  him,  he  will  not  be  bound  by  the 
estimate.  But  such  estimate  will  not  be  affected  by  the  inade- 
quacy of  the  amount,  or  that  the  usual  means  were  not  resorted  to 
for  ascertaining  facts,  if  the  umpire  act  bona  fide^  which  is  a  fact  to 
be  determined  by  the  jury.^ 


SECTION  XIII, 


Belief  in  Equity  from  Decisions  of  Company's  Ungineefs. 


1.  Facts  of  an  important  case  stated. 

2.  Claim  o/ contractor  in  the  bill. 

3.  Bill  sustained.    Amendment  alleging  mis- 

take in  estimates. 

4.  Relie/only  to  be  had  in  equity. 

6.   Proof  of  fraud  must  be  very  clear. 

6.  Engineer  being  shareholder,  not  valid  ob- 

jection. 

7.  Decision  of  engineer  conclusive  as  to  qual- 

ity of  work,  but  not  as  to  quantity. 

8.  New  contract  condonation  of  old  claims. 

9.  Account  ordered  afrer  company  had  com- 

pleted work. 


10.  Money  penalties  cannot  be  relieved  against 

unless  for  fraud, 
n.  1.  Review  of  the  cases  upon  this  subject. 

11.  Engineer's  estimates  not  conclusive  unless 

so  agreed. 

12.  Contractor,  whose  work  surrendered  by 

supplemental  contract,  entitled  to  frill 
compensation. 

13.  Direction  of  umpire  binding  on  contract- 

ing parties,  and  dispenses  with  certifi- 
cate of  full  performance. 


§  117.  1.  In  consequence  of  the  peculiar  stringency  of  the  terms 
of  contracts  for  railway  construction,  applications  for  *  relief  in 
equity  have  not  been  unfrequent.     In  one  case  ^  it  was  agreed  by 

•  "Wilson  V.  York  &  Md.  Railw.  Co.,  11  Gill  &  Johns.  58.  Gross  negligence 
is  not  fraud,  but  is  eiridence  to  be  considered  by  the  jury.     Id. 

>  Ranger  v.  Great  Western  Railw.,  1  Railw.  C.  1 ;  8.  c.  13  Sim.  368. 

And  where  by  the  contract  the  work  was  to  be  done  to  the  satisfaction  of  the 
engineer  of  the  defendants,  and  suit  was  brought  without  obtaining  the  judgment 
of  the  engineer,  held,  that  it  could  not  be  maintained.  Parkes  c.  The  Great 
Western  Railw.,  3  Railw.  C.  17. 

This  case  is  also  found  in  3  Railw.  C.  298,  and  in  5  Ho.  Lds.  72,  and  in  27 
Eng.  Law.  i&  Eq.  35. 

This  case  came  before  the  House  of  Lords,  on  appeal  for  final  determination, 
•419 


§  117.      EQUITABLE  RELIEF   FROM   DECISIONS  OF  ENGINEERS.  419 

tlio  contract  that  every  fortnight  the  engineer  of  the  *  company 
should  ascertain  the  value  of  the  work  done,  according  to  its 

May  26,  1854,  just  ten  years  after  the  decision  in  the  Vice-Cbancellor's  court. 
The  judgment  was  in  the  main  affirmed,  but  in  form  was  reversed,  and  sent  back 
to  the  Court  of  Chancery,  for  an  account  to  be  taken  between  the  parties,  accord- 
ing to  their  respective  rights,  as  established  by  the  final  decision. 

The  case,  as  it  appeared  on  the  final  hearing,  is  deserving  of  a  more  extended 
notice.  The  following  is  the  statement  of  the  case,  and  the  points  ruled  in  the 
House  of  Lords. 

In  a  contract  between  R.  and  a  railway  company  for  the  performance  by  R. 
of  a  portion  of  tht^line  of  railway,  after  reciting  that  R.  agreed  to  secure  the  due 
performance  of  his  contract,  by  his  bond  in  the  penal  sum  of  £4,000  conditioned 
for  the  payment  to  the  company  of  certain  fixed  sums  for  everj'  week  in  which 
the  work  should  not  be  completed  according  to  the  contract,  the  penalty  in  each 
successive  week  to  increase  in  a  fixed  proportion,  it  was  witnessed,  amongst  other 
things,  that  in  case  R.  should  become  insolvent,  &c.,  or  should,  from  any  cause 
whatsoever  (not  the  act  of  the  company),  not  proceed  in  the  works  to  the  satis- 
faction of  the  company,  the  company  might  give  to  R.  a  notice  in  writing  requir- 
ing him  to  proceed  with  the  said  works,  and  in  case  R.  should  for  seven  days  after 
such  notice  make  default  in  commencing  or  regularly  proceeding  with  the  said 
works,  it  should  be  lawful  for  the  company  to  employ  other  persons  to  complete 
the  works,  and  pay  them  out  of  the  money  which  should  be  then  remaining  due 
to  R.  on  account  of  his  contract;  and  that  the  moneys  previously  paid  to  R.  on 
account  of  any  works  should  be  considered  as  the  full  value,  and  be  taken  by  him 
as  in  full  payment  and  satisfaction  for  all  works  done  by  him;  and  that  all 
moneys  which  either  then  or  thereafter  would  have  been  payable  to  R.,  together 
with  all  the  tools  and  materials  then  being  upon  the  works,  should,  upon  such 
default  as  aforesaid,  become  and  be  in  all  respects  considered  as  the  absolute 
property  of  the  company ;  and  that  if  such  moneys,  tools,  and  materiab  should 
not  be  sufficient  to  pay  for  the  completion  of  the  works,  then  R.  should  make 
good  such  deficiency  on  demand.  It  was  then  further  witnessed,  and  the 
company  covenanted  to  pay  to  R.  for  the  completion  of  the  works  the  sum  of 
£63,028  16s.,  in  the  following  manner,  namely,  every  fourteen  days  four-fifth 
parts  of  the  whole  value  of  the  said  works  which  sliall  have  been  actually  per- 
formed during  the  preceding  fourteen  days,  until  there  should  be  a  reserved  fund 
of  £4,000,  and  then  every  fourteen  days  to  pay  the  full  value  of  such  works,  such 
value  to  be  estimated  by  the  principal  engineer  or  his  assistant,  having  reference 
as  well  to  the  prices  in  the  schedule  (as  to  extra  work)  as  to  the  entire  cost 
of  the  whole  works ;  and  at  the  expiration  of  one  calendar  month  after  the  com- 
pletion of  the  entire  works,  to  pay  one  moiety  of  the  £4,000  so  retained  in  the 
hands  of  the  company,  and  at  the  expiration  of  one  year  and  a  month,  the  re- 
maining moiety  of  the  £4,000.  And  it  was  lastly  agreed,  that  during  the  progress 
of  the  works,  the  decision  of  the  principal  engineer  for  the  time  being  of  the 
company,  with  respect  to  the  amount,  state,  condition,  &c.,  or  any  other  matter 
or  thing  whatsoever  relating  to  the  same,  shall  be  final,  and  without  ap]M.>al ;  but 
in  case  of  dispute,  after  the  completion  of  the  contract,  as  to  any  matter  of 
charge  or  account  between  the  company  and  R.,  such  dispute  shall  be  finally 

*420 


420  CONSTRUCTION   OF  RAILWAYS.  CH.  XV. 

quality  and  relative  proportion  to  the  whole  work  ;  the  *  contractor 
to  receive  eighty  per  centum,  the  remainder  being  reserved  to 

settled  by  the  arbitration  of  the  said  engineer  on  the  part  of  the  company,  and 
an  engineer  appointed  by  R.  on  his  part,  or  if  they  disagree,  by  an  arbitrator  to 
be  named  by  them.  After  R.  had  proceeded  to  a  ver}-  considerable  extent  tow- 
ards the  completion  of  his  contract,  the  company,  being  dissatisfied  with  the 
progress  of  the  works,  gave  the  notice  to  R.  mentioned  in  the  contract,  and  after 
seven  days  they  took  possession  of  the  works,  and  of  all  the  tools  and  materials 
thereon,  and  completed  the  works  by  other  parties.  R.  filed  his  bill,  setting  up 
a  case  of  fraud  against  the  company  in  concealing  the  nature  of  the  strata  through 
which  cuttings  and  tunnels  were  to  be  made,  and  insisting  that  he  was  entitled 
to  be  paid  for  those  works  at  fair  prices,  regardless  of  the  contract ;  that  the 
fortnightly  certificates  of  the  value  of  the  works  given  by  B.,  the  engineer  of  the 
company,  were  void,  and  not  binding  upon  him,  in  consequence  of  B.  being  a 
shareholder  in  the  company ;  that  he  was  entitled  to  be  relieved  against  certain 
money  penalties  which  had  been  charged  against  him  in  the  engineer's  certifi- 
cates ;  that  the  company  were  not  justified  in  taking  possession  of  the  works, 
tools,  and  materials ;  and  that  he  was  entitled  to  have  an  account  taken  of  the 
value  of  the  works  done,  on  the  footing  that  there  were  no  contracts,  or  that 
they  were  abandoned :  and  that  the  company  might  be  debited  with  the  value 
of  the  engines,  tools,  materials,  articles,  and  things  of  which  the  company  took 
possession. 

Held,  first,  that  no  case  of  fraud  had  been  made  out.  But,  sevible,  that  although 
a  corporation  cannot  be  guilty  of  fraud,  yet  if  their  agents  employed  in  canying 
out  a  trading  speculation  be  guilty  of  fraud,  the  corporation  will  be  liable.  Per 
the  Lord  Chancellor. 

Secondly,  that  the  principle  which  prevents  a  person  being  a  judge  in  his  own 
cause  (Dimes  r.  The  Grand  Junction  Canal  Co.,  3  Ho.  Lds.  759;  17  Jur.  73; 
8.  C.  16  Eng.  L.  &  Eq.  63),  does  not  apply  to  the  case  of  the  engineer  of  a  rail- 
way company  holding  shares  in  that  company,  who,  according  to  the  terms  of  a 
contract  between  the  company  and  a  contractor,  was,  during  the  progress  of  the 
works,  to  give  periodical  certificates  of  the  value  of  the  work  done,  but  which, 
on  the  completion  of  the  contract,  were  not  final. 

Thirdly,  that  the  money  penalties  had  been  properly  charged  against  R.,  they 
being,  upon  the  proper  construction  of  the  contract,  not  penalties,  but  liquidated 
damages. 

Fourthly,  that  even  assuming  that  the  company  were  not  justified  in  taking 
possession  of  the  works,  tools,  and  materials,  after  the  notice  given  R.  was  not 
entitled  to  treat  the  contract  as  not  existing,  or  as  abandoned.  R.'s  right  would 
have  been  by  action  for  damages,  and  the  seizure  by  the  company  formed  no 
ground  for  such  equitable  relief  as  was  asked. 

Fifthly,  that  upon  the  true  construction  of  the  contract,  the  company  did  not 
according  to  their  contention,  upon  taking  possession  of  the  works  and  plant 
after  notice,  become  absolute  owners  of  the  toob  and  materials,  &c. ;  this  whole 
provision  is  to  be  regarded,  not  in  the  nature  of  a  penalty,  but  as  mere  machinery 
for  enabling  the  company  to  complete  the  works  at  the  cost  of  R.,  and  the  com- 
pany are  boimd  to  account  for  the  value  of  the  tools  and  materials,  in  settling 
•421 


§  117.      EQUITABLE  RELIEF   FROM   DECISIONS   OF   ENGINEERS.  421 

enforce  the  completion  of  the  works.  That  if  the  *  engineer  should 
not  be  satisfied  with  the  works,  after  notice  given  to  the  contractor, 

their  accounts  with  him,  which  accounts  were  decreed  to  be  taken  on  the  footing 
of  the  contract.  In  regard  to  the  competency  of  the  engineer,  the  learned 
chancellor  said :  "  When  it  is  stipulated  that  certain  questions  shall  be  decided 
by  the  engineer  appointed  by  the  company,  that  is,  in  fact,  a  stipulation  that 
they  shall  be  decided  by  the  company.  It  is  obvious  that  there  never  was  any 
intention  of  leaving  to  third  persons  the  decision  of  questions  arising  during  the 
progress  of  the  works.  The  company  reserved  the  decision  for  itself,  acting, 
however,  as  from  the  nature  of  things  it  must  act,  by  an  agent,  and  that  agent 
was,  for  this  purpose,  the  engineer.  His  decisions  were,  in  fact,  their  decisions. 
The  contract  did  not  hold  out,  or  pretend  to  hold  out,  to  the  appellant,  that  he 
was  to  look  to  the  engineer  in  any  other  character  than  as  the  impersonation  of 
the  company.  In  fact,  the  contract  treats  his  acts  and  their  acts,  for  many  pur- 
poses, as  equivalent,  or  rather  identical.  I  am,  therefore,  of  opinion,  that  the 
principle  on  which  the  doctrines  as  to  a  judge  rest,  wholly  fails  as  to  its  applica- 
tion to  this  case.  The  company's  engineer  was  not  intended  to  be  an  impartial 
judge,  but  the  organ  of  one  of  the  contracting  parties.  The  company  stipulated 
that  their  engineer  for  the  time  being,  whosoever  he  might  be,  should  be  the  per- 
son to  decide  disputes  pending  the  progress  of  the  works,  and  the  ap])ellant,  by 
assenting  to  that  stipulation,  put  it  out  of  his  power  to  object,  on  the  ground  of 
what  has  been  called  the  "  unindifferency  "  of  the  person  by  whose  decision  he 
agreed  to  be  bound.  It  is  to  be  observed,  that  the  person  to  decide  was  not  a 
particular  individual,  in  whom  notwithstanding  his  relation  to  the  company, 
the  contractor  might  have  so  much  confidence  as  to  agree  to  be  bound  by  hit 
awards,  but  any  one  from  time  to  time  the  company  might  choose  to  select  as 
their  engineer.  The  appellant  alleges  that  he  did  not  know  the  fact  that  Mr. 
Brunei  was  a  shareholder  until  more  than  two  years  afler  the  works  had  been 
begun. 

"  But  he  must  have  known  that  the  company  had  it  in  their  power  to  appoint 
another  engineer  in  Mr.  Brunei's  place,  who  might  hold  shares,  or  that  Mr. 
Brunei  himself  might  purchase  shares.  Without  the  intervention  of  the  engineer, 
the  contract  was,  as  it  were,  paralyzed ;  nothing  could  be  done  under  it ;  and  it 
surely  can  hardly  be  argued  that  a  person  appointed  engineer  could,  by  pur- 
chasing shares,  render  the  contract  practically  inoperative." 

It  is  regarded  as  questionable,  how  far  a  contract,  vesting  the  property  of 
the  contractor  in  the  company,  in  the  event  of  his  insolvency  merely,  could  be 
maintained,  as  consistent  with  the  English  bankrupt  and  insolvent  laws.  Rouch 
V.  The  Great  W.  Railw.,  1  Q.  B,  51 ;  s.  c.  2  Railw.  C.  605.  But  this  objection 
may  be  obviated  by  the  company  stipulating  for  a  lien  merely ;  a  right  to  use  the 
tools  and  materials  of  the  contractor  in  the  completion  of  the  work,  according  to 
and  in  fulfilment  of  his  contract.  Hawthorn  ».  Newcastle-upon-Tyne  &  N. 
Shield  Railw.,  3  Q.  B.  784,  note  a ;  s.  c.  2  Railw.  C.  299.  It  is  said  in  one  case, 
by  a  very  learned  equity  judge.  Lord  Redesdale  (O'Connor  r.  Spaight,  1  Sch.  9t 
Lef.  809),  that  where  an  account  has  become  so  complicated  that  a  court  of  law 
would  be  incompetent  to  examine  it,  upon  a  trial  at  Nisi  Prius,  with  all  ne- 
cessar}-  accuracy,  a  court  of  equity  will,  upon  that  ground  alone,  take  cognizance 

•422 


422  CONSTRUCTION  OP   RAILWAYS.  CH.  XV. 

and  his  *  default  in  complying  for  seven  days  to  take  possession 
of  the  works,  thereupon  the  plant  and  materials  of  the  contractor, 

of  the  case.  But  a  court  of  equity  will  not  ordinarily  interfere  in  any  such 
case,  and  especially  when  the  party  applying  has  been  guilty  of  laches.  North- 
western Railw.  V.  Martin,  2  Phil.  758.  See  also  Taff-Vale  Railw.  v.  Nixon,  1 
H.  L.  Cas.  Ill ;  Faley  v.  Hill,  2  id.  45,  46.  See  also  Nixon  v.  Taff-Vale  Railw., 
7  Hare,  136.  It  is  questionable,  we  think,  whether  any  such  distinct  ground  of 
exclusive  equity  jurisdiction,  in  matters  of  account,  as  the  complicated  nature 
of  the  transactions,  can  be  maintained,  but  there  is  little  doubt  this  would  be 
regarded  as  an  important  consideration  in  guiding  the  discretion  of  that  court, 
in  assuming  such  jurisdiction,  in  any  particular  case  pending  in  a  court  of  law. 
But  sometimes  where  the  contractor  claims  the  right  to  appropriate  payments, 
made  generally,  to  a  different  contract  from  that  upon  which  the  company  desire 
it  to  apply,  it  becomes  necessary  to  draw  the  whole  into  a  court  of  equity. 
Southeastern  Railw.  v.  Brogden,  14  Jur.  795 ;  s.  c.  3  McN.  &.  G.  8.  See  upon 
the  general  subject.  Waring  v.  The  Manch.  &  Sheffield  &  L.  Railw.,  7  Hare, 
482.  An  important  case,  upon  a  contract  for  railway  construction,  finally 
determined  in  the  national  tribunal  of  last  resort,  upon  elaborate  argument 
and  great  consideration,  and  which  involved  most  of  the  subjects  involved  in 
the  case  of  Ranger  v.  the  Great  Western  Railw.,  may  be  regarded,  perhaps, 
as  bearing  something  of  the  same  relation  to  cases  in  this  country'  upon  that 
subject  which  the  English  case  does  to  cases  of  that  kind  in  the  English 
courts. 

This  is  the  case  of  Philadelphia,  Wilmington,  &  Baltimore  Railw.  v.  Howard,  13 
How.  307 ;  8.  c.  1  Am.  Railw.  C.  70.  It  came  into  the  United  States  Supreme 
Court  by  writ  of  error  to  the  Circuit  Court  of  the  United  States  for  the  District 
of  Maryland.  Tlie  facts  in  the  case  are  complicated,  and  the  points  involved 
numerous.  It  will  only  be  necessary  to  state  the  facts,  in  connection  with  the 
several  points  decided.     The  points  bearing  upon  this  subject  are :  — 

In  such  contract  the  covenant  to  finish  the  work  by  a  time  named  on  the  one 
part,  and  to  pay  monthly  on  the  other  part,  are  distinct  and  independent  cove- 
nants. And  a  right  to  annul  the  contract,  on  the  part  of  the  company,  at  any 
time,  did  not  include  a  right  to  forfeit  the  earnings  of  the  other  party  for  work 
done  prior  to  the  time  when  the  contract  was  annulled. 

A  covenant  to  execute  the  work,  according  to  a  certain  schedule,  which 
mentioned  that  it  was  to  be  done  according  to  the  directions  of  the  engi- 
neer, bound  the  company  to  pay  for  work  done  according  to  his  directions, 
although  not  strictly  in  conformity  with  a  profile  showing  the  original  proximate 
estimates. 

And  when  the  contract  was  to  place  the  waste  earth  where  ordered  by  the 
engineer,  it  was  the  duty  of  the  engineer  to  provide  a  convenient  place,  and  if  he 
failed  to  do  so  the  other  party  is  entitled  to  damages. 

Where  the  contract  authorized  the  company  to  retain,  until  the  completion  of 
the  contract,  fifteen  per  cent  of  the  earnings  of  the  contractor,  by  way  of  in- 
demnity from  loss,  by  any  failure  to  perform  the  contract  by  the  contractor,  it 
was  held  this  was  not  to  be  regarded  as  a  forfeiture,  and  that  the  company,  if 
they  terminated  the  contract,  were  bound  to  pay  the  contractor  any  amount 
*423 


§  117.      EQUITABLE  RELIEF   PROM   DECISIONS   OP   ENGINEERS.  423 

and  *  all  the  work  done  and  not  paid  for,  and  the  reserved 
fund  to  be  forfeited  to  the  company. 

which  they  had  so  retained,  unless  the  jury  were  satisfied  the  company  had  sus- 
tained loss  by  the  default,  negligence,  or  misconduct  of  the  contractor,  which 
should  be  deducted. 

Where  the  contractor  was  delayed  in  the  progress  of  the  work,  by  an  injunc- 
tion out  of  Chancery,  he  is  entitled  to  no  damages,  unless  the  jury  find  that  the 
company  did  not  use  reasonable  diligence  in  obtaining  a  dissolution  of  the  in- 
junction. 

If  a  railway  company,  having  the  |>ower  reserved  to  them  of  annulling  a  con- 
tract for  construction,  "  when,  in  their  opinion,  it  is  not  in  due  progress  of  exe- 
cution," or  the  contractor  is  "  irregular  or  negligent,"  it  was  held,  that  if  they 
exercised  this  power  for  the  purpose  of  having  the  work  done  cheaper,  or  of 
oppressing  and  injuring  the  contractor,  he  was  entitled  to  recover  damages  for 
any  loss  of  profit  he  might  have  sustained,  and  of  the  reasons  which  influenced 
the  company,  the  jury  were  to  be  judges. 

And  in  Herrick  v.  Vermont  Central  Railw.,  27  Vt.  673,  the  following  points 
were  decided  upon  this  subject :  — 

A  stipulation  in  a  contract  for  the  construction,  in  part,  of  a  railway,  that 
"  the  engineer  shall  be  the  sole  judge  of  the  quality  and  quantity  of  the  work,  and 
from  his  decision  there  shall  be  no  appeal,"  is  binding  upon  the  parties,  and  con- 
stitutes the  engineer  an  arbitrator  or  umpire  between  them. 

Such  a  stipulation  imposes  upon  the  party  by  whom  the  engineers  are  to  be 
employed,  the  duty  of  employing  for  such  engineers  competent,  upright,  and 
trustworthy  persons,  and  to  see  to  it  that  they  perform  the  service  expected  of 
them  at  a  proper  time  and  in  a  proper  manner. 

Such  a  stipulation,  when  construed  with  reference  to  its  subject-matter,  and 
the  ordinar}-  course  of  business,  docs  not  require  the  estimates  to  be  made  or 
verified  by  the  chief  engineer,  but  has  reference  as  well  to  the  assistant,  or  res- 
ident engineer,  by  whom  such  estimates  are  usually  made. 

If  payment  for  the  work  performed  is  dependent  upon  and  to  be  made  accord- 
ing to  the  engineer's  estimates,  as  to  its  amount,  and  the  employing  party  per- 
forms its  duty  in  reference  to  the  emplojTnent  of  suitable  engineers,  &c.,  the 
obUgation  to  pay  will  not  arise  until  such  estimates  are  made. 

But  if  no  estimates  are  made,  through  the  neglect  or  fault  of  the  engineer,  or 
of  the  party  who  employs  him,  the  other  party  could  probably  recover  at  law,  for 
the  work  performed  by  him,  without  any  engineer's  estimate  of  it. 

A  contract  providing  for  monthly  estimates  of  the  contractor's  work,  ac- 
cording to  which  he  is  to  be  paid,  imports  an  accurate  measurement  and  final 
estimate  for  each  month,  and  not  such  a  one  as  is  merely  approximate  or  con- 
jectural. 

A  court  of  equity  has  jurisdiction  of  a  claim  to  be  paid  for  a  larger  amount  of 
work  done  under  such  a  contract  than  was  estimated  by  the  engineer,  where  the 
under-estimate  was  occasioned  either  by  mistake  or  fraud. 

The  Vermont  Central  Railw.  Co.  contracted  with  B.  for  the  construction  of 
their  railway,  and  B.  contracted  with  the  plaintiff  for  the  construction  of  a  part 
of  it.     In  both  contracts  there  was  such  a  provision  in  reference  to  the  conclu- 

•424 


424  CONSTRUCTION   OP   RAILWAYS.  CH.  XT. 

•  2.  The  company  having  taken  the  forfeiture  under  the  contract, 
the  plaintiff  filed  his  bill,  insisting  that  the  engineer  had  under- 
estimated the  work  .£30,000,  and  that  no  forfeiture  had  been 
incurred  by  him,  and  praying  that  tlie  company  might  elect  to 
permit  the  plaintiff  to  complete  the  works,  or  that  the  contract 
might  be  considered  at  an  end,  and  in  either  case  an  account 
between  the  parties  might  be  taken. 

siveness  of  the  engineer's  estimates.  Held,  that  there  was  no  privity  of  contract 
between  the  plaintiff  and  the  Vermont  Central  Railway  Co.,  and  that  he  could 
not  recover  of  them  for  work  not  estimated  by  the  engineer,  by  reason  only  of 
a  mistake,  which  they  had  not,  either  directly  or  indirectly,  caused  or  connived 
at ;  and  that  their  indebtedness  to  B.  for  the  same  work  for  which  he  was  in- 
debted to  the  plaintiff,  did  not  constitute  a  fund  against  which  the  plaintiff  had 
a  claim. 

But  if  there  was  any  connivance  on  the  part  of  the  Vermont  Central  Railway 
Co.,  or  their  agents,  in  bringing  about  the  imder-estimates  complained  of,  even 
if  it  was  without  the  design  ultimately  to  defraud,  but  only  as  a  temporary  ex- 
pedient for  present  relief,  the  plaintiff  would  be  entitled  to  recover  of  them  the 
loss  which  he  sustained  by  reason  thereof. 

The  plaintiff  claimed  in  his  bill,  that  he  had  been  under-estimated  a  given 
amount,  for  the  payment  of  which  he  instituted  the  present  suit ;  by  the  report 
of  the  Master,  the  amount  not  estimated  was  found  to  be  more  than  twice  that 
amount.  Held,  that  the  plaintiff  should  be  limited  ,to  the  amount  claimed  in  his 
bill. 

The  report  of  a  Master  in  Chancery  upon  the  taking  of  an  account,  should 
contain  a  succinct  statement  of  all  the  points  made  by  counsel,  and  the  facts 
found  by  him  upon  each  point. 

The  testimony  given  viva  voce  before  a  Master  in  Chancery,  in  taking  an  ac- 
count, or  a  copy  of  it,  should  be  returned  to  the  court,  with  his  report. 

The  Master  should  also  state  the  account,  at  length,  and  aU  the  facts  found 
by  him.  So  that  they  will  be  intelligible,  without  reference  to  the  testimony. 

In  a  contract  for  railway  constniction,  where  the  parties  by  a  subsequent  con- 
tract stipulated  for  the  completing  of  the  work  by  a  day  named,  for  the  additional 
price  of  £15,000,  and  a  further  stipulation  that  the  contractor  should  pay  the 
company  £300  for  each  day's  delay  beyond  the  time  specified,  the  company  to 
furnish  the  rails  and  chairs,  blocks,  &c.,  to  complete  the  same,  by  the  day  specified. 
The  work  was  not  finished  for  twenty-four  days  after  the  time  specified,  and  the 
rails,  chairs,  blocks,  &c.,  were  not  furnished  to  complete  it  sooner.  The  court 
held  the  covenants  independent  of  each  other,  and  the  contractor  bound  to 
deduct  the  stipulated  forfeiture,  notwithstanding  the  default  of  the  company. 
Mcintosh  c.  Midland  Counties  Railw.,  14  M.  &  W.  548 ;  8.  c.  3  Railw.  C.  780. 
The  rule  of  law  that  covenants,  which  are  not  the  entire  consideration  for  each 
other,  will  ordinarily  be  construed  as  independent,  unless  there  is  something  in 
the  transaction  which  shows  the  parties  regarded  them  as  dependent,  is  certainly 
carried  further  in  this  case  than  reason  and  justice  would  seem  to  justify.  We 
think  this  case  would  not  be  followed  in  this  country. 
♦425 


§  117.      EQUITABLE   RELIEF   PROM   DECISIONS  OP   ENGINEERS.  425 

3.  The  Lord  Chancellor  held,  that  the  facts  alleged  do  entitle 
the  plaintiff  to  relief  in  equity.  The  plaintiff  amended  his  bill, 
and  alleged  that  the  most  expensive  masonry  had  been  paid  for 
only  at  the  price  of  inferior  work,  and  claimed  large  sums  in  that 
respect,  and  also  alleged  fraud  against  the  company,  in  the  con- 
tracts and  in  the  certificates. 

4.  It  was  held,  that  the  investigations  as  to  the  sufficiency  of 
the  payments  made  could  only  be  made  in  a  court  of  equity. 

5.  That  the  evidence  in  support  of  an  allegation  of  fraud  must 
be  very  clear,  and  that  it  is  not  enough  to  show  that  the  state- 
ments of  the  company  as  to  the  nature  of  the  work,  gave  imper- 
fect information,  but  it  must  also  be  shown  that  the  contractor 
could  not  with  reasonable  diligence  have  acquired  all  necessary 
information. 

6.  The  fact  of  the  engineer  being  a  shareholder  in  the  company 
is  not  enough  to  avoid  his  decision,  as  the  contractor  might  have 
ascertained  this  fact.  The  character  of  an  engineer  is  of  more 
value  to  him  than  his  interest  as  a  shareholder. 

7.  That  the  decision  of  the  engineer  as  to  the  quality  of  the 
work  is  conclusive,  but  not  as  to  the  quantity.  The  question  of 
measurement  and  calculation  will  be  entertained  and  decided  by 
a  court  of  equity. 

*  8.  That  where  the  parties  have  entered  into  new  contracts,  it 
will  be  considered  a  condonation  of  old  injuries,  unless,  at  the 
time  of  making  the  new  contract,  the  plaintiff  insisted  upon  his 
adverse  claims,  the  parties  being  at  liberty  to  proceed  at  law. 

9.  After  the  works  were  completed  by  the  company  the  court 
ordered  an  account  taken,  directing  special  inquiries  as  to  the 
amount  and  kind  of  work  done. 

10.  It  was  held  that  stipulations  in  regard  to  penalties  in  these 
contracts  are  binding  upon  the  parties,  and  no  relief  against 
them  will  be  afforded  in  equity  unless  fraud  be  shown.  And  that, 
where  it  had  been  agreed  that  a  written  contract  should  form 
part  of  an  unwritten  one,  this  will  include  stipulations  as  to  for- 
feiture.^ 

11.  In  one  case  in  Pennsylvania  ^  it  was  decided  that  the  esti- 
mates and  decisions  of  the  engineer  of  a  railway  company  are 
conclusive,  in  disputes  with  contractors,  only  where  such  is  the 
positive  stipulation  of  the  contract ;  that  in  every  other  case  the 

•  Memphis  Railw.  Co.  r.  Wilcox,  48  Penn.  St.  161. 

•426 


426 


CONSTRUCTION   OF    RAILWAYS. 


CH.  XV. 


correctness  of  such  estimates  are  to  be  tested  by  evidence,  and 
in  an  action  against  the  company  by  a  contractor  to  recover  a 
balance  claimed  to  be  due  for  work,  it  is  correct  to  instruct  the 
jury  to  rely  on  the  engineer's  final  estimates  unless  shown  to  be 
erroneous. 

12.  In  such  a  contract,  where  a  supplemental  contract  was  made 
by  the  company,  assuming  the  work,  and  agreeing  to  pay  the  con- 
tractor for  what  work  he  had  done,  and  reserving  no  claim  for 
damages,  either  on  account  of  the  suspension  of  the  work  or  its 
not  being  completed,  it  was  held  that  the  contractor  was  entitled 
to  compensation  according  to  the  stipulations  of  the  supplemental 
contract,  without  any  deductions  on  account  of  suspension  of  or 
not  completing  the  work,  and  that  the  work  done  and  agreed  to  be 
compensated  must  be  estimated  at  what  it  was  worth,  and  the 
contractor's  claim  could  not  be  restricted  to  what  would  be  coming 
to  him  under  the  final  estimates  of  the  engineer ;  nor  could  the 
company  claim  any  deductions  on  account  of  loss  incurred  in  com- 
pleting the  work. 2 

13.  And  where  the  plaintiflf  stipulated  to  perform  the  work  of 
shifting  the  track  of  a  railway,  under  the  direction  and  to  the 
*  satisfaction  of  the  city  surveyor,  whose  certificate  that  the  work 
had  been  so  performed  was  to  entitle  him  to  payment,  it  was  held, 
that  where  the  surveyor  directed  that  the  work  should  not  be  done 
beyond  a  certain  point,  that  was  a  valid  excuse  for  not  obtaining 
his  certificate  of  performance  beyond  that  point.^ 


♦SECTION  XIV. 


Frauds  in  Contracts  for  Construction. 


1.  RdievMe  in  equity  upon  general  princi- 

ples. 

2.  Statement  of  leading  cases  upon  this  subject. 


3.    Where  no  definite  contract  closed,  no  rdief 
can  be  granted. 


§  118.  1.  It  is  well  known  that  courts  of  equity  will  relieve 
against  fraud  practised  by  the  agents  of  railways,  in  building- 
contracts,  the  same  as  in  other  cases  of  fraud.  But  the  impor- 
tance and  peculiar  nature  of  these  contracts"  will  justify  a  brief 
note  of  the  cases  decided  upon  the  subject. 

'  Devlin  r.  Second  Avenue  Railw.  Co.,  44  Barb.  81. 
♦  427 


§118.  FRADD8   IN   CONTRACTS   FOR  CONSTRUCTION.  427 

2.  Tlie  most  important  case  in  the  English  books  upon  this 
subject,  is  that  of  Ranger  v.  The  Great  Western  Railway,  which 
we  have  just  referred  to  upon  another  point.*    And  the  state- 

*  1  Railw.  C.  1 ;  8.  c.  8  Railw.  C.  298.  On  appeal  in  the  House  of  Lonls,  27 
Eng.  L.  &.  Eq.  85,  41 ;  8.  c.  18  Sim.  368 ;  5  Ho.  Lds.  72.  In  regard  to  fraud, 
on  the  part  of  railway  companies,  in  building-contracts,  the  Lord  Chancellor 
said :  "  The  first  ground  on  which  the  appellant  rests  his  title  to  relief  is,  that  he 
was  induced  to  enter  into  the  contract  by  the  fraud  of  the  company ;  that  the 
sum  at  which  he  agreed  to  do  the  works  was  far  below  what  he  would  have  re- 
quired had  he  known  the  real  nature  of  the  soil  through  which  the  tunnels  were 
to  be  made ;  but  on  this  point  he  had  been  misled  by  the  fraudulent  contrivance 
of  the  respondents.  The  case  made  by  the  bill  on  this  head  is,  that  there  being 
on  the  line  of  the  road  to  be  made  for  the  railway  in  the  neighborhood  of  Bristol 
three  kinds  of  stone,  sandstone,  Dunns  or  Dunn  stone,  and  Pennant  or  Ilanham 
stone,  of  which  the  first  (that  is,  sandstone)  is  comparatively  soft  and  easy  to 
work,  whereas  the  other  two  kinds  (particularly  the  latter)  are  hard  and  difficult 
to  work,  the  company  acting  through  Mr.  Brunei,  their  engineer,  fraudulently 
contrived  to  make  the  appellant  believe  that  the  cuttings  would  be  through  the 
softer  material  (sandstone),  and  not  through  Dunns  or  Pennant  stone,  whereas 
the  fact  was,  as  they  well  knew,  that  the  line  was  chiefly  through  the  harder  sorts 
of  stone.  The  bill  represents,  that,  for  the  purpose  of  enabling  persons  desirous 
of  contracting  to  make  the  road  along  the  line  included  in  the  contract  described 
as  1  B,  to  tender  for  the  same,  it  was  necessarj-  that  in  different  parts  of  that 
portion  of  the  intended  line  pits  should  be  sunk,  called  •  trial  pits,'  in  order  that 
the  nature  of  the  strata  might  be  previously  known ;  and  accordingly  that  the 
respondents  did  sink  ten  such  pits,  but  that  eight  of  them  were  only  sunk  to  the 
depth  of  a  few  feet,  and  were,  therefore,  of  little  or  no  use  in  showing  what  would 
be  the  nature  of  the  soil  at  the  level  of  the  line  of  the  railway,  which  was  at  a 
very  considerable  depth  below  the  surface ;  and  the  other  two  were  sunk  respect- 
ively to  depths  of  78  and  55  feet  only,  at  points  where  the  intended  line  of  road 
was  in  one  case  112  feet  and  in  the  other  97  feet  below  the  surface,  so  that  these 
two  pits  did  not  reach  the  level  of  the  railway,  in  one  case  by  34  feet,  and  in 
the  other  by  42  feet.  The  bill  further  alleges  that  the  soil  dug  out  of  all  of  the 
said  pits  was  laid  on  the  surface  near  the  mouth,  and  showed  apparent ly  a  sub- 
stratum of  sandstone,  the  workmen  employed  to  sink  the  pits  having  by  direc- 
tions from  the  company  ceased  to  dig  when  they  reached  the  hard  stone,  except 
that  out  of  the  bottom  of  one  of  the  deep  pits  some  Dunn  stone  was  taken,  but 
which  had  crumbled  away  when  exposed  to  the  air. 

"  The  bill  then  goes  on  to  charge,  in  substance,  that  the  company,  with  knowl- 
edge that  the  cuttings  would  have  to  be  made  through  the  harder  sorts  of  stone, 
caused  notice  to  be  given  by  advertisement,  that  they  were  ready  to  receive 
tenders  acconling  to  certain  printed  fonns  circulated  for  the  purpose,  and  the 
natum  of  the  works  to  be  done  was  to  be  ascertained  from  a  specification 
deposited  in  their  oflice  at  Bristol.  The  specification  described  the  works  for 
which  the  tender  was  to  be  made.  The  printed  form  of  tender  contained  an  un- 
dertaking by  the  party  tendering,  not  only  that  he  would  do  the  contract  works 
at  a  specified  sum,  but  also  that  he  would  do  any  extra  works,  and  make  any 


428  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

*  ment  of  tliat  case,  in  the  House  of  Lords,  by  the  Lord  Chan- 
cellor  Cranworth,  is  a  better  commentary  than  elsewhere  exists, 

alterations  in  or  additions  to  the  original  works  which  might  be  deemed  expedient 
in  the  course  of  their  progress,  on  being  paid  for  the  same  according  to  certain 
rates  set  out  in  a  schedule  of  prices  annexed  to.  the  tender.  The  diifcrent  heads 
under  which  charges  were  to  be  made  by  the  contractor,  in  respect  of  such  extra 
or  altered  works  were  all  printed  as  part  of  the  form  of  tender,  and  the  party 
tendering  was  to  write  against  each  such  head  the  price  at  which  he  would  agree 
to  be  bound  to  do  the  same  works  of  the  nature  there  referred  to.  Amongst  the 
works  so  to  be  done  was  the  excavating  clay,  shell,  and  sandstone,  but  there  was 
no  mention  in  the  schedule  of  any  other  stone.  Neither  Dunn  stone  nor  Pennant 
are  referred  to  by  name  ;  and  the  suggestion  of  the  bill  is,  that  the  omission  of 
any  mention  of  Dunn  or  Pennant  stone  was  a  contrivance,  or  part  of  a  con- 
trivance, for  the  purpose  of  leading  the  persons  tendering,  to  suppose  that  they 
might  make  their  calculations  on  the  footing  of  there  being  no  hard  stone 
to  be  cut  through,  —  a  supposition  which  would  be  confirmed  by  the  trial  pits, 
out  of  which  no  hard  stone  had  been  dug,  except  the  small  portion  of  Dunn  stone 
from  one  of  the  pits,  which,  as  I  have  already  stated,  crumbled  away  when  ex- 
posed to  the  air. 

"  The  appellant  was  resident  in  London,  and  in  order  to  enable  him  to  make 
his  tender,  he  sent  down  to  Bristol  an  agent,  Thomas  Lloyd,  whom  he  represents 
as  a  competent  judge  in  such  matters,  to  examine  the  line  of  the  proposed  works, 
so  as  to  enable  him  to  form  a  correct  judgment  as  to  what  would  be  a  fair  amount 
to  be  tendered.  The  bill  states  that  Lloyd  accordingly  proceeded  to  Bristol  in 
the  month  of  March,  1836,  surveyed  the  line  and  inspected  the  trial  pits,  and 
that,  reasonably  supposing  the  two  principal  pits  to  have  been  sunk  to  the  level, 
and  not  finding  amongst  the  excavated  material  accumulated  on  the  surface  any 
thing  but  soft  or  loose  stone,  —  no  Pennant  or  Hanham  stone,  —  he  concluded  that 
there  would  be  no  cutting  through  hard  stone  ;  and  the  sum  tendered  was  calcu- 
lated on  that  basis.  It  was,  according  to  the  bill,  impossible  for  Lloyd  to  get 
down  to  or  near  the  bottom  of  the  two  principal  trial  pits,  in  consequence  of  their 
being  nearly  filled  up  with  rubbish  and  water  before  he  examined  them.  The 
appellant,  therefore,  contends  that  he  was  imposed  upon  as  to  the  nature  of  the 
work  he  had  to  perform,  and  so  agreed  to  do  it  on  terms  to  which,  but  for  the 
deception  practised  upon  him,  he  would  not  have  consented.  The  question  on 
this  part  of  the  case  is  one  of  fact.  Is  it  established  that  any  imposition  was 
practised  on  the  appellant  to  induce  him  to  enter  into  the  contract  ?  For  if  there 
was,  he  was  clearly  entitled  to  relief,  — whether  precisely  that  which  he  asks  for 
is  another  question.  Strictly  speaking,  a  corporation  cannot  of  itself  be  guilty 
of  fraud ;  but  where  a  corporation  is  formed  for  the  purpose  of  carrying  on  a 
trading  or  other  speculation  for  profit,  such  as  forming  a  railway,  these  objects 
can  only  be  accomplished  through  the  agency  of  individuals ;  and  there  can  be 
no  doubt  that  if  the  agents  employed  conduct  themselves  fraudulently,  so  that,  if 
they  had  been  acting  for  private  employers,  the  persons  for  whom  they  were 
acting  would  have  been  affected  by  their  fraud,  the  same  principles  must  prevail 
where  the  principal  under  whom  the  agent  acts  is  a  corporation.  The  question, 
therefore,  on  this  part  of  the  case  is  whether  the  directors,  or  the  engineers, 
•428 


§  118.  FRAUDS   IN  CONTRACTS  FOR  CONSTRUCTION.  429 

*upon  this  subject.  The  general  subject  of  fraud  in  railway 
companies,  in  regard  to  building  contracts,  is  somewhat  con- 
sidered in  a  late  case  in  the  Supreme  Court  of  Vermont.^ 

or  agents,  whom  they  employed,  were  guilty  of  the  fraudulent  misrepresenta- 
tions alleged  by  the  bill.  I  am  clearly  of  opinion  that  no  such  case  is  made 
out.  [His  lordship  here  stated  the  nature  of  the  evidence  on  this  point,  and 
continued]  r — 

"  Two  engineers,  Mr.  Frere  and  Mr.  Babbage,  both  say  that  the  appellant  had 
ample  opportunity,  by  means  of  the  trial  pits  and  cuttings,  of  ascertaining  the 
nature  of  the  soil  and  strata ;  and  the  circumstances  of  the  case  satisfy  me  that 
this  must  be  true.  The  work  to  be  done  was  of  a  laborious,  difficult,  and  expen- 
sive character.  The  notices  calling  for  tenders  had  been  circulated  for  many 
weeks,  and  even  months,  and  would  naturally  excite  the  attention  of  contractors 
of  eminence,  who  would  be  drawn  to  the  spot.  I  cannot  attribute  to  the  com- 
pany the  fraudulent  intention  imputed  to  them  —  an  intention  as  absurd  as  it 
would  have  been  fraudulent  —  of  meaning  to  mislead  those  who  should  apply  to 
make  tenders  for  the  work,  when  they  must  have  felt  that  the  success  of  such  a 
fraud  must  entirely  depend  on  the  very  improbable  chance,  that  those  who  should 
be  attracted  by  the  notices  would  omit  to  make  inquiry  into  the  nature  of  the 
soil  they  would  have  to  excavate.  The  work  was  not  one  of  a  trifling  nature ; 
one  of  the  persons  who  made  a  tender  demanded  above  £100,000.  The  tenders 
were,  in  the  first  instance,  to  be  made  before  the  1st  March,  1836 ;  and  until 
nearly  a  fortnight  after  that  date  the  two  principal  trial  pits  had  been  open,  and  free 
from  water,  so  that  there  was  nothing  to  prevent  any  contractor  from  himself 
ascertaining  to  what  depth  it  had  been  cut,  and  what  was  the  soil  at  the  bottom ; 
and  though  by  the  12th  March  a  great  deal  of  water  had  entered,  and  so  partially 
choked  the  two  principal  pits,  yet  Mr.  Frere  says  the  company  and  their  engi- 
neers were  always  ready  to  facilitate  the  appellant^s  investigation  as  to  the  nature 
of  the  soil  and  strata. 

"  The  appellant,  in  his  bill,  assumes  that  sandstone  and  Pennant  stone  are  two 
different  kinds  of  stone,  but  this  is  not  the  conclusion  at  which,  on  the  evidence, 
I  arrive.  *  Pennant  stone,'  says  Mr.  Brunei,  '  is  a  species  of  sandstone,  and  the 
only  species  in  the  neighborhood  of  Bristol  of  sufficient  hardness  to  be  used  for 
bridges,  or  other  strong  masonrj-.'  And  Mr.  Frere  says  that  it  is  extensively 
used  in  Bristol,  and  is  the  hardest  sort  of  sandstone  found  in  that  neighborhood, 
except  the  Brandon  Hill  stone.  Dunn  stone,  according  to  the  same  witness,  is 
merely  a  local  term  for  a  particular  variety  of  shale,  and  is  frequently  found  in 
cuttings  along  with  sandstone.  Tliis  explanation  fully  justifies  the  language  of 
the  tenders,  without  supposing  that  the  materials  to  be  excavated  and  removed 
were  there  mentioned  by  the  company  for  any  purpose  of  deception.  The  soil 
to  be  removed  was  sufficiently  designated  as  consisting  of  clay,  shale,  and  sand- 
stone, the  latter  term  comprehending  all  sandstone,  hard  as  well  as  soft ;  that  is 
Pennant  or  Hanham  stone  (which  is  in  truth  only  Pennant  stone  found  at  Han- 
ham),  as  well  as  ordinary  sandstone.    In  the  contract  2  B,  the  expression  occurs. 


»  Herrick  r.  The  Vermont  Central^Railw.,  27  Vt.  678. 

•429 


430  CONSTRUCTION   OP   RAILWAYS.  CH.  XV. 

*3.  But  it  is  clear  that  where  no  binding  and  complete  con- 
tract has  been  entered  into  by  the  company,  although  the  *  ten- 
ders made  by  a  contractor  have  been  accepted  by  their  engineer, 
authorized  to  act  on  their  behalf,  and  the  contractor  has  incurred 

•  compact  gray  sandstone,  commonly  called  Hanham  stone.'  It  was  for  the  appel- 
lant, before  he  made  a  tender,  to  satisfy  himself  as  to  the  probable  hardness  of  the 
sandstone  to  be  removed,  which,  after  all,  could  never  be  ascertained  beforehand 
with  perfect  certainty.  By  examining  the  trial  pits  and  cuttings,  and  making  in- 
quiries of  the  engineers,  he  might  have  ascertained  the  depth  to  which  the  pits 
had  been  sunk,  and  the  nature  of  the  soil  through  which  they  had  penetrated, 
and  at  which  they  had  arrived.  The  cuttings,  according  to  the  evidence  of  Mr. 
Frere,  exhibited  sandstone.  Pennant,  and  Dunn  stone ;  and  the  old  quarry  in 
Fox's  Wood  showed  Pennant. 

"  In  these  circumstances,  I  think  it  is  impossible  to  believe  that  there  was  any 
thing  like  contrivance  to  mislead  the  appellant  or  any  other  contractor ;  and  it  is 
clear  that  the  appellant,  if  there  was  no  fraud,  was  bound  to  satisfy  himself  on  the 
subject ;  for  the  specification  of  the  proposed  works,  submitted  to  him  before  the 
tender  was  made,  expressly  stipulates  that  the  contractor  must  satisfy  himself  of 
the  nature  of  the  soil,  and  of  all  matters  which  can  in  any  way  influence  his  con- 
tract. This,  though  of  course  it  would  not  absolve  the  company  from  the  con- 
sequences of  any  fraudulent  contrivances  to  mislead,  yet  certainly,  in  the  absence 
of  fraud,  threw  on  the  appellant  the  obligation  of  judging  for  himself.  I  must 
further  add,  that  I  cannot  believe  the  appellant  to  have  been  really  mistaken  as 
to  the  nature  of  the  -soil,  except,  possibly,  that  the  proportion  of  hard  stone  was 
greater  than  he  had  imagined  he  should  find.  I  come  to  this  conclusion  from  the 
fact,  that  the  specification,  which  was  submitted  to  him  before  he  made  the  tender, 
provides  for  the  construction  of  the  Avon  bridge,  and  other  masonry,  by  means 
of  the  stone  to  be  obtained  from  the  cuttings.  Now,  Mr.  Brunei  says  that  Pen- 
nant is  the  only  sandstone  in  the  neighborhood  of  Bristol  of  suflScient  hardness 
to  be  used  for  masonry.  The  appellant  either  did  know  or  might  have  known 
this  when  he  made  his  tender,  and  it  is  surely  impossible  for  him,  in  the  face  of 
such  a  clause  in  the  specification,  to  say  that  he  did  not  know  there  would  be  any 
beds  of  Pennant  stone  — that  is,  of  stone  capable  of  being  used  for  masonry  —  to 
be  excavated  or  removed.  It  is  not  unworthy  of  observation,  that  Mr.  Stanton, 
one  of  the  persons  who  made  a  tender,  in  his  schedule  of  prices  as  to  the  sum 
which  he  would  require  for  working  sandstone,  obviously  points  to  the  difference 
which  might  exist  in  the  expense  of  removing  sandstone  of  different  qualities  ; 
and  he  did  not,  like  the  appellant  and  the  other  persons  who  made  tenders,  offer 
one  fixed  uniform  sum  for  sandstone  of  every  quality,  but  he  required  for  moving, 
&c.,  sandstone  from  open  cuttings.  Is.  id.  to  2*.  2d.,  and  from  tunnels,  2*.  dd. 
to  4s.  6d. ;  from  which,  I  think,  it  may  be  fairly  inferred  that  he  understood  the 
words  '  sandstone'  used  in  the  schedule  to  include  stone  of  different  degrees  of 
hardness  ;  some  more  expensive  to  work,  some  less  so.  To  all  these  considera- 
tions must  be  added,  that  the  appellant  did  not,  so  far  jas  there  is  any  evidence 
on  the  subject,  make  any  remonstrance  as  to  the  supposed  deception  or  mistake 
during  the  progress  of  the  works,  nor  until  after  the  relation  between  the  parties 
had  been  entirely  determined." 
*  430,  431 


§119. 


engineer's  estimate. 


431 


expense  upon  the  faith  of  having  the  contract,  in  preparation  to 
fulfil  it,  there  being  certain  alternatives  in  the  tender,  which  liad 
not  been  decided  upon,  and  the  whole  thing  being  given  up  and 
no  specific  contract  made  under  the  seal  of  the  company, 
equity  can  grant  no  relief.^  For  if  there  was  no  contract  equity 
could  not  create  one,  and  if  there  was  a  valid  contract  the  rem- 
edy at  law  is  adequate. 

• 
♦SECTION    XV. 


Engineer's  Estimate  wanting  through  FauU  of  Company. 


1.  In  such  due  contractor  may  maintain  bill 

in  equity. 

2.  Grounds  o/ equitable  interference. 

8.  After  company  terminate  contract,  oon- 
tractor  will  be  enjoined  from  interference. 
And  same  rule  sometimes  extends  to  com- 
pany. 

4.  Stipulation  requiring  engineer's  estimate, 
not  void. 

6.  Not  the  same  as  an  agreement,  that  all  dis- 
putes shall  be  decided  by  arbitration. 


Engineer's  estimate  projter  condition  pre- 

cedent. 
Same  as  sale  of  goods,  at  the  valuation  of 

third  party. 
The  resuk  of  all  the  English  cases  seems 

to  be,  that  only  the  question  of  damages 

properly  referable  to  the  engineer. 
The  rule  in  this  respect  different,  in  this 

country. 


§  119.  1.  Where,  by  the  terms  of  a  railway  construction  con- 
tract, executed  under  the  seals  of  the  parties,  the  work  is  to  be 
paid  for,  from  time  to  time,  upon  the  estimate  and  approval  of 
the  company's  principal  engineer,  and  the  amount  and  quality 
of  the  work  finally  to  be  determined,  in  the  same  mode,  no  ac- 
tion, either  at  law  or  in  equity,  can  be  maintained  until  such 
estimate  and  approval  is  obtained,  unless  it  is  prevented  by  the 
fault  of  the  company.  But  where  no  such  engineer  is  furnished 
by  the  company,  or  where  through  their  connivance  he  neglects 
to  act,  the  contractor  is  not  witliout  remedy,  in  equity.^  Lord 
Chancellor  Cottenham.,  in  affirming  this  decision,^  sa3:8 :  — 

2.  "  It  is  true  that  the  specification  and  contract  constitute  a 
relationship  between  the  plaintiffs  and  the  defendants,  which,  if 
correctly  acted  upon,  would  have  given  to  the  plaintiffs  a  legal 

'  Jackson  v.  The  North  Wales  PUilw.,  1  HaU  &  T.  76,  8.  c.  6  Railw.  C.  112. 

»  Mcintosh  r.  The  Great  Western  Railw.,  2  De  G.  &  S.  758.  This  is  the 
decision  of  the  Vice-Chancellor,  which  came  before  the  Lord  Chancellor,  as 
mentioned  in  note  2. 

«  Mcintosh  r.  The  Great  Western  Railw.,  2  Hall  &  T.  260;  8.  c.  2  Mac.  & 
G.  74. 

:i  -482 


432  CONSTRUCTION  OF  RAILWAYS.  CH.  XV. 

right,  and  a  legal  right  only,  to  the  benefits  they  claimed  by  this 
bill.  But  if  the  facts  stated  in  the  bill  are  such  as,  if  true,  de- 
prive the  plaintiffs  of  the  means  of  enforcing  such  legal  rights, 
and  if  those  facts  have  arisen  from  the  conduct  of  the  defend- 
ants, or  of  their  agent  so  recognized  by  the  specification  and 
contract,  and  now  used  for  the  fraudulent  purpose  of  defeating 
*  the  plaintiffs'  claim  altogether,  the  defendants  cannot  resist  the 
plaintifis'  claim  in  equity  upon, the  ground  that  their  remedy  is 
only  at  law ;  nor  is  it  any  answer  to  show  that,  if  the  plaintifis 
cannot  get  at  law  what  they  contracted  for,  they  may  obtain 
compensation  in  damages.  It  is  no  answer  to  a  bill  for  specific 
performance  that  the  plaintififs  may  bring  an  action  for  damages 
for  a  breach  of  the  contract,  or  in  a  proper  case  of  a  bill  for  dis- 
covery of  some  specific  chattels  that  damages  may  be  recovered 
in  trover, — the  language  of  pleading  is  not  that  the  plaintiff  have 
no  remedy,  but  no  adequate  remedy  save  in  a  court  of  equity. 
It  is  therefore  no  answer  in  the  present  case  for  the  defendants 
to  urge,  that  if  they  or  their  agent  have  been  neglectful  of  what 
they  undertook  to  do,  by  which  the  plaintiffs  have  suffered,  they 
may  be  liable  in  damage  to  the  plaintiffs.  They  contracted  for 
a  specific  thing,  and  are  not  bound  to  take  that,  or  something  in 
lieu  of  it,  if  such  other  thing  be  not  what  this  court  considers  as 
a  fair  equivalent.  I  do  not  therefore  consider  that  any  answer 
is  given  to  the  plaintiffs'  right  to  file  a  bill  in  this  court  by  show- 
ing that  the  ground  upon  which  they  seek  their  right  so  to  do, 
namely,  the  being  barred  of  their  legal  remedy  by  the  conduct 
of  the  defendants,  may  subject  them  to  damages  at  law." 

3.  And  where  disputes  arose  between  the  contractor  and  the 
company,  each  charging  default  upon  the  other's  part,  and  claim- 
ing the  right  to  occupy  the  works,  and  the  workmen  of  both 
coming  in  collision,  upon  the  line  of  the  road,  and  the  comple- 
tion and  opening  of  the  road  being  delayed  in  consequence,  the 
court,  on  the  application  of  the  company,  restrained  the  con- 
tractor from  continuing  on  the  line  or  interfering  with  the 
operations  of  the  company,  but  directed  an  account  of  what  was 
due  the  contractor,  without  regard  to  the  former  certificates  of 
the  company's  engineer,  and  an  issue  to  try  whether  the  com- 
pany were  justified  in  removing  the  contractor,  reserving  all 
claims  for  loss  and  compensation  till  the  final  hearing.^ 

3  East  Lancashire  Railw.  v.  Hattersley,  8  Hare,  72. 
•433 


§  119.  engineer's  estimate.  433 

And  ill  a  very  recent  case,*  by  the  terms  of  the  contract  it  was 
provided,  that  if  the  contractor  made  default  the  company  might 
themselves  complete  the  line,  and  that  the  plant,  <&c.,  upon  the 
*  line  belonging  to  the  contractor  should  become  the  property  of 
the  company,  and  be  set  off  against  tlie  debts,  if  any,  due  from 
him  to  the  company,  and  that  the  contractor  should  not  hinder 
the  company  from  using  the  same.  Default  having  been  made 
by  the  contractor,  the  company  completed  the  lino  and  were  pro- 
ceeding to  remove  the  plant,  &c.  An  arbitration  was  pending 
to  decide  the  question  of  amount  between  the  contractor  and  the 
company.  It  was  held  that  the  company  must  be  enjoined  from 
removing  the  plant  before  award  given. 

Lord  Roviilly^  M.  R.,  here  suggests  that  the  company  have  no 
right  to  take  the  plant  until  it  appears  that  the  contractor  is  in- 
debted to  them ;  but  we  should  have  said  that  under  such  a  con- 
tract the  fair  construction  is  that  the  company  may  take  and  use 
the  plant  in  completing  the  line,  making  themselves  debtor  to 
the  contractor  for  the  same.  The  purpose  of  such  a  stipulation 
presumptively  is,  that  the  work  may  not  be  interrupted  by  the 
change  of  hands  from  the  contractor  to  the  company.  But  after 
the  road  is  completed,  so  far  as  the  contract  extended,  and  the 
company  had  made  no  use  of  the  plant,  the  view  suggested  by 
his  lordship  seems  entirely  just  and  reasonable. 

4.  The  question  of  the  right  to  recover  at  all  at  law,  without 
procuring  the  engineer's  estimate,  where  that  is  made  a  condi- 
tion precedent  in  the  contract,  has  been  of  late  considerably  dis- 
cussed in  the  English  courts,  and  especially  in  the  important 
case  before  the  House  of  Lords,  in  July,  1856 ;  ^  and  the  result 
arrived  at  seems  to  be,  that  such  a  clause  in  a  contract,  in  regard 
to  the  basis  of  recovery,  is  not  equivalent  to  a  stipulation  that 
no  action  shall  be  brought,  or  that  the  case  shall  not  come  before 
the  courts  of  law  or  equity,  which  has  long  since  been  deter- 
mined to  be  repugnant  and  void.' 

5.  The  distinction  is  somewhat  refined,  and  difficult  of  exact 
definition,  but  it  seems  to  us  not  altogether  without  foundation. 
A  stipulation,  that  no  action  shall  ever  be  brought  upon  a  con- 

*  Garrett  r.  Salisbury  &  Dorset  Junction  Railw.,  Law  Rep.  2  Eq.  358 ;  s.  c. 
12  Jur.,  N.  S.  495. 

»  Scott  c.  Avery,  6  Ho.  Lds.  811 ;  8.  c.  36  Eng.  L.  &  Eq.  1. 

*  Thompson  c.  Cbarnock,  8  T.  R.  139.     See  also  Tattersall  t.  Groote,  2  B. 

&  P.  181. 

28  *434 


434  CONSTRUCTION   OF  RAILWAYS.  CH.  XV. 

tract,  or,  wliat  is  equivalent,  that  all  disputes  under  it  shall  be 
referred  to  arbitration,  is  a  repugnancy,  which  if  carried  out  lit- 
erally must  render  the  contract  itself,  as  a  mode  of  legal  redress, 
*  wholly  idle.  And  it  is  only  in  this  view  that  contracts  are  to  be 
considered  by  the  courts. 

6.  But  a  stipulation  that  the  liability  under  a  contract  or  cove- 
nant shall  not  accrue,  except  upon  the  basis  of  certain  previously 
ascertained  facts,  where  the  contract  contains  provisions  for  ascer- 
taining them,  by  the  action  of  either  party,  without  the  concurrence 
of  the  other,  is  no  more  than  a  limitation  upon  the  right  of  action, 
as  that  no  action  shall  be  brought  until  after  one  year,  or  unless 
commenced  within  six  months,''^  which  have  been  held  valid.  And 
even  where  the  concurrence  of  both  parties  is  requisite  and  the 
performance  of  the  condition  fails  through  the  refusal  of  one,  it 
probably  is  the  same  as  to  the  other  as  if  performed. 

7.  Hence  a  contract  to  purchase  goods  ^at  the  valuation  of  N. 
and  M.,  cannot  be  made  the  foundation  of  an  action,  without  obtain- 
ing the  valuation  stipulated,^  or  showing  that  the  other  party  hin- 
dered it.^  And  in  some  cases  it  has  been  held,  that  if  the  obtaining 
of  the  estimate  is  withheld  or  defeated  by  the  fraud  of  the  other 
party,  that  no  action  at  law  will  lie,  the  only  remedy  being  by  a 
special  action  for  the  fraud,  or  in  equity,  perhaps.^ 

8.  This  subject  is  very  elaborately  discussed  by  the  judges  be- 
fore the  House  of  Lords,  in  the  case  of  Scott  v.  Avery ,^  and  it  is 
remarkable  how  wide  a  difference  of  opinion  was .  found  to  exist, 
upon  a  question  which  might  seem  at  first  blush  so  simple.  Of 
the  nine  judges  who  gave  formal  opinions,  three  were  *  opposed  to 
allowing  any  force  whatever  to  such  a  stipulation.     And  of  the 

'  Wilson  V.  Mtaa,  Ins.  Co.,  27  Vt.  99,  and  cases  there  cited. 

8  Thuraell  v.  Balbirnie,  2  M.  «&  W.  786  ;  Milnes  v.  Gery,  14  Vesey,  400. 

*  Milner  ».  Field,  5  Exch.  829.  But  in  a  later  case  in  the  same  court  it  is 
said  that  the  award  must  be  obtained,  or  it  must  be  shown  that  it  is  no  longer 
practicable  to  obtain  it.  Brown  v.  Overbury,  11  Exch.  715  ;  8.  c.  34  Eng.  L.  & 
Eq.  610.  This  rule,  with  the  qualification  that  the  defendant  by  his  own  act  or 
refusal  had  rendered  the  performance  of  the  condition  impracticable,  is  now,  in 
this  country  certainly,  held  such  an  excuse  as  will  enable  the  party  to  sue  in  a 
court  of  law.  United  States  v.  Robeson,  9  Peters,  (U.  S.)  319,  326.  And  in  a 
very  late  case  in  Pennsylvania,  Snodgrass  v.  Gavit,  28  Penn.  St.  221,  Mr. 
Justice  Woodward  assumes  it  as  the  unquestionable  rule,  in  that  state,  that 
"  where  parties  stipulate  that  disputes,  whether  actual  or  prospective,  shall  be 
submitted  to  the  arbitrament  of  a  particular  individual,  or  tribunal,  they  are 
bound  by  their  contract,  and  cannot  seek  redress  elsewhere." 
*  435,  436 


§  120.  CONTRACTS  FOR  MATERIALS  AND  MACHINERY.  486 

other  six,  four  held  that  only  the  question  of  damages  can  properly 
be  made  to  depend,  as  a  condition  precedent,  upon  the  award  of  an 
arbitrator,  while  two  held  that  the  award  may  be  made  to  include 
all  matters  of  dispute  growing  out  of  the  contract,  which  it  seems 
to  us  must  be  regarded  as  equivalent  to  saying  that  no  action  at 
law  or  in  equity  shall  be  brought  to  determine  any  controversy 
growing  out  of  the  contract,  which  all  the  judges  agree  is  a  void 
stipulation.  We  therefore  feel  compelled  to  adopt  the  view  that 
upon  principle,  and  the  fair  balance  of  authority,  such  a  stipula- 
tion, in  regard  to  estimating  labor  or  damages,  under  a  contract 
for  construction,  is  valid,  and  may  be  treated  as  a  condition  prece- 
dent, but  that  beyond  that,  the  present  inclination  of  the  English 
courts  is  to  hold  that  it  is  repugnant  to  sound  policy,  and  subver- 
sive of  the  legal  obligation  of  the  contract,  as  being  equivalent 
to  a  stipulation  that  no  action  at  law  shall  be  brought  upon  the 
contract,  but  only  upon  the  award,  if  not  paid. 

9.  But  the  balance  of  authority  in  this  country  seems  to  be  in 
favor  of  allowing  such  a  condition  precedent,  in  this  class  of  con- 
tracts, to  extend  to  the  quality  of  the  work,  as  well  as  the  quan- 
tity, and  to  the  question,  whether  the  work  is  progressing  with 
sufficient  rapidity,  and  whether  the  company  on  that  account  are 
justified  in  putting  an  end  to  the  contract.^  It  seems  reasonable 
to  us,  on  many  grounds,  that  contracts  of  this  magnitude  and 
character  should  receive  a  somewhat  different  interpretation  in 
this  respect  from  that  which  is  applied  to  the  ordinary  commercial 
transactions  of  the  country,  as  has  been  held  in  regard  to  pecuniary 
penalties.^®  We  should  not  therefore  feel  justified  in  intimating 
any  desire  to  see  the  American  cases  on  this  subject  qualified. 

•SECTION  XVI. 
CoTdradafor  Maieriala  and  Machinery. 


1.  Mannjadurtr  not  UabU/or  latent  defect  in 

materials. 

2.  Contract  for  railuxtg  sleepers,  terms  stated. 
8.    Construction  of  suck  contract. 


4.  Party  may  vxuve  stipulation  in  contract, 

by  acquiescence. 
6.    Company  UabUfor  materials,  accepted  and 

used. 


§  120.  1.  In  a  contract  for  fire  engines,  it  was  stipulated  that 
the  engines  and  tender  should  be  subject  to  the  performance  of 


AMe,  §§  116,  117. 

•437 


436  CONSTRUCTION  OP  RAILWAYS.  CH.  XV. 

one  thousand  miles,  with  proper  loads,  the  manufacturers  to  be 
liable  for  any  breakage  which  may  occur  through  defect  of  ma- 
terials or  workmanship,  but  not  where  it  occurs  from  collision, 
neglect,  or  mismanagement  of  the  company's  servants,  or  any 
other  cause,  except  the  two  first  named.  The  trial  to  take  place 
within  one  month  from  the  day  on  which  any  engine  is  reported 
ready  to  start,  in  default  of  which  the  manufacturers  to  be  re- 
leased from  all  responsibility.  It  was  specially  agreed  the  fire- 
boxes should  be  of  copper,  T-lOths  of  an  inch  thick.  One  of  the 
engines,  so  supplied,  performed  the  thousand  miles  according  to 
the  contract,  but  some  months  after  the  fire-box  burst,  when  it 
was  discovered  that  the  copper  was  reduced  to  S-lGths  of  an  inch 
in  thickness,  it  being  conceded  it  was  originally  of  the  thickness 
required  by  the  contract.  In  an  action  for  the  price  of  the  engine, 
which  by  the  contract  was  to  be  paid  upon  the  satisfactory  comple- 
tion of  the  trial,  it  was  held  the  defendants  could  not  give  evidence 
of  such  defect  in  the  copper,  no  fraud  being  alleged,  and  that,  by 
the  terms  of  the  contract,  the  three  months'  trial  having  been 
satisfactory,  released  the  manufacturers  from  aU  responsibility  in 
respect  of  bad  materials  and  workmanship.^ 

2.  In  a  contract  for  railway  sleepers ,2  it  was  stipulated  that  the 
plaintiff  below  should  supply  the  defendant  below  with  350,000 
sleepers,  the  contract  before  having  recited  that  the  *  defendants 
were  desirous  of  being  supplied  with  that  number  of  railway  sleep- 
ers. The  contract  specified  that  the  plaintiffs  were  willing  to  sup- 
ply them  according  to  a  specification  and  tender,  which  stated  that 
the  number  of  sleepers  required  was  350,000,  that  one-half  would 
have  to  be  delivered  in  1847,  and  the  remamder  by  midsummer, 
1848 ;  and  the  contract  also  contained  a  covenant  to  supply  the 
sleepers  within  the  time  specified,  "  as,  and  when,  and  in  such 
quantities,  and  in  such  manner,"  as  the  engineer  of  the  company 
by  orders  in  writing,  "  from  time  to  time  or  at  any  time,  within 
the  time  limited  by  the  specification,  should  require."  The  deed 
also  contained  a  provision,  that  the  engineer  might  vary  the  time 
of  delivery,  that  the  company  should  retain  in  their  hands  £2,000 
as  security  for  the  performance  of  the  contract,  and  should  pay  it 
over  within  two  months  after  the  sleepers  had  been  delivered,  and 

>  Sharp  c.  The  Great  Western  Raaw.,  2  Railw.  C.  722 ;  s.  c.  9  M.  &  W.  7. 
•  The  Great  Northern  RaUw.  v.  Harrison,  14  Eng.  L.  &  Eq.  189, 12  C.  B.  576,  in 
the  Exchequer  Chamber,  from  the  C.  P. ;  8.  c.  8  Eng.  L.  &  Eq.  469, 11 C.  B.  815. 
*438 


§  120.  CONTRACTS   FOR  MATERIALS  AND  MACHINERY.  487 

that  the  contract  might  be  determined  upon  the  default  or  bank- 
ruptcy of  the  plaintiffs, 

3.  It  was  held  that  there  was  an  implied  covenant  on  the  part 
of  the  company  to  take  the  whole  number  of  350,000  sleepers. 
That  an  order  by  the  engineer  was  a  condition  precedent  to  any 
delivery  of  the  sleepers  by  the  plaintiffs  ;  That  the  company  were 
bound  to  cause  such  order  to  be  given  within  the  time  limited  by 
the  specification ;  That  although  the  engineer  had  power  to  alter 
the  time  for  the  delivery  of  tlie  sleepers,  such  power  was  to  be 
exercised  within  the  period  limited  by  the  specification  ;  That  the 
engineer,  as  to  matters  in  which  he  had  a  discretion,  e.  g.  as  to 
varying  the  time  of  delivery  of  the  sleepers,  stood  in  the  position 
of  arbitrator  between  the  parties,  but  as  to  giving  the  order  for  the 
delivery  he  was  a  mere  agent  of  the  company  ;  The  only  legitimate 
rule  of  construction  is  to  ascertain  the  meaning  from  the  language 
used  in  the  instrument,  coupled  with  such  facts  as  are  admissible 
in  evidence,  to  aid  its  explanation.  —  Per  Parke,  B. 

4.  It  has  been  held,  also,  in  a  contract  with  a  railway  company 
to  deliver  iron,  "  near  the  months  of  July  and  August,"  and  the 
delivery  continuing  till  the  25th  of  October,  and  the  company  not 
objecting  to  receive  it,  that  they  were  bound  by  the  *  terms  of  the 
contract,  one  of  which  was  that  they  were  to  give  their  notes  for 
each  parcel  of  iron  as  it  was  shipped.^ 

5.  So,  too,  under  the  English  statute,*  which  provides  that  the 
directors  of  a  railway  company  may  contract  by  parol,  on  behalf 
of  the  company,  where  private  persons  may  make  a  valid  parol 
contract,  it  was  held,  where  the  agent  of  the  company  agreed  by 
parol  with  the  plaintiff  to  purchase  of  him  a  quantity  of  railway 
sleepers  upon  certain  terras,  the  sleepers  being  delivered  and  used 
by  the  company,  tliat  they  were  liable.^ 

'  Bailey  v.  The  Western  Vermont  Railw.,  18  Barb.  112.  It  was  also  held, 
here,  that  the  refusal  of  the  company  to  give  their  notes,  as  stipulated,  excused 
the  plaintiff  from  delivering  or  tendering  the  remainder  of  the  iron,  until  the 
company  should  tender  their  notes,  and  entitled  plaintiff  to  sue  presently. 

♦  8  and  9  Vict.  c.  16. 

•  Paulding  v.  London  &  North  W.  Railw.,  8  Exch.  867 ;  8,  c.  22  Eng.  L.  & 
Eq.  660.  The  contract  was  made  by  the  engineer's  clerk,  who  was  also  clerk 
of  the  company,  but  there  was  evidence  of  the  assent  of  the  committee.  Lowe 
r.  London  &  North  W.  Bailw.,  18  Q.  B.  632 ;  8.  c.  14  Eng.  L.  &  Eq.  18. 

•439 


438 


CONSTRUCTION   OF   RAILWAYS. 


CH.  XV. 


SECTION  XVII. 


Contract  to  Pay  in  the  Stock  of  the  Company. 


1.  Breach  of  such  contract  generally  entitles 

the  party  to  recover  the  nominal  value  of 
stock. 

2.  But  if  the  party  have  not  strictly  performed 

on  his  part,  can  only  recover  market 
value. 


8.  .Cash  portion  overpaid,  will  only  reduce 
stock  portion  dollar  for  dollar. 

n.  2.  Lawful  incumbrance  on  company's  prop- 
erty, will  not  excuse  contractor  from  ac- 
cepting stock. 


§  121.  1.  In  many  contracts  for  construction,  the  whole  or  a 
portion  of  the  price  is  stipulated  to  be  paid  in  the  stock  of  the  com- 
pany, as  the  work  progresses,  at  certain  stages,  or  when  it  is  com- 
pleted. The  time,  place,  and  mode  of  payment  in  such  cases,  will 
be  the  same  ordinarily  as  in  other  contracts  for  payment  of  stock. 
If  the  company  refuse  or  neglect  to  deliver  the  stock  or  the  proper 
certificates  when  it  becomes  due,  upon  proper  request  or  oppor- 
tunity, they  are  generally  liable,  it  is  considered,  as  in  other  cases 
of  failure  to  perform  contracts,  for  a  certain  amount  or  value,  in 
collateral  articles  expressed  in  currency .^ 

*  2.  But  it  was  held,  that  where  the  plaintiff  recovered  a  bal- 
ance due  on  equitable  grounds,  and  not  on  the  groiuid  of  strict 
and  full  performance  of  the  contract,  he  was  precluded  on  like 
equitable  grounds  from  recovering  more  for  the  stock  portion  of 
the  contract  than  its  market  value  at  the  commencement  of  the 
action  .2 

*  Moore  v.  Hudson  River  Railw.,  12  Barb,  156.  It  was  held,  in  this  case, 
that  where  a  portion  of  the  price  of  construction  was  payable  in  stock,  at  par, 
within  thirty  days  after  the  completion  of  the  contract,  the  company  were  not 
bound  to  make  any  tender  of  the  stock,  as  in  case  of  contracts  for  specific 
articles.  But  that  it  was  a  payment  in  depreciated  currency,  and  no  tender 
necessary.  In  a  recent  English  case.  Re  Alexandra  Park  Co.,  12  Jur.  N.  S. 
482,  where  the  contractor  stipulated  to  accept  a  portion  of  his  pay  in  stock,  at 
the  election  of  the  company,  it  was  held  he  was  not  bound  by  such  an  election 
after  the  company  was  ordered  to  be  wound  up  as  insolvent,  as  the  shares  thereby 
become  extinguished. 

*  Barker  ».  T.  &  R.  Railw.,  27  Vt.  766.  In  this  case  the  court  say:  "If 
the  defendants  have,  upon  reasonable  request,  declined  paying  the  amount  due, 
in  their  stock,  as  stipulated,  it  would  seem  but  reasonable  they  should  pay  the 
amount  in  money. 

"1.  This  is  the  general  rule  in  regard  to  contracts  payable  in  collateral  arti- 
cles, estimated  in  currency,  and  not  delivered. 

"2.  The  stock  of  a  corporation  is  but  a  certificate  of  such  a  sum  being  due 
*440 


§  121.  PAYMENTS   IN  STOCK   OP  THE  COMPANY.  439 

*  3.  So,  too,  where  the  work  is  to  be  paid  partly  in  stock  and 
partlj  in  money,  if  the  money  part  be  overpaid,  even  by  doing  a 

the  bearer.  And  trhen  the  party  stipulated  to  pay  in  his  own  paper,  if  he  re- 
fose,  suit  may  be  brought  immediately,  although  the  paper  was  to  have  been  on 
time,  if  given.  But  it  was  never  supposed  the  party  could  reduce  the  recov- 
ery, by  showing  his  paper  depreciated  in  the  market.  This  would  be  virtually 
giving  the  difference  to  the  other  stockholders.  This  would  be  the  rule  which 
should  be  applied  if  defendants  are  wilfully  in  fault.  K  it  were  the  stock  of 
another  company,  no  doubt,  all  which  could  be  recovered  is  the  value  of  the 
stock  in  the  market.  Certainly,  this  is  the  general  rule  in  reganl  to  stock.  And, 
perhaps,  that  rule  should  be  applied  to  the  stock  of  the  defendants,  if  it  appears 
they  have  not  wilfully  and  unreasonably  refused  to  deliver  the  stock.  Ante,  §  88. 

*'  But  the  recovery  here  is  not  allowed  upon  strictly  legal  grounds,  upon  the 
strict  and  literal  performance  of  the  contract  on  the  part  of  the  plaintiffs.  It  is 
rather  upon  equitable  grounds  that  any  recover}'  and  apportionment  of  the  con- 
tract is  allowed  for  any  thing  less  than  full  performance.  By  the  terms  of  the 
contract  the  defendants  had  a  right  to  retain  the  tenth  part  reserved  until  full  per- 
formance. And,  although  it  has  not  been  regarded  as  a  strict  condition  pre- 
cedent in  some  of  the  cases  (Danville  Bridge  Co.  r.  Pomeroy,  15  Penn.  St. 
151),  still  it  is  a  stipulation  in  the  contract,  for  the  full  performance  of  which 
the  defendants  had  the  right  to  insist,  and  for  doing  which  they  are  not  to  be 
themselves  regarded  as  in  fault.  The  defendants,  too,  were  justified  in  refusing 
to  pay  any  deficiency  in  the  work  at  the  time  of  the  demand ;  so  that  while  we 
excuse  the  plaintiffs  from  full  performance  of  their  contract,  as  a  strict  condi- 
tion precedent,  and  allow  them  to  recover  to  the  extent  of  what  they  had  done, 
on  the  equitable  ground  that  they  had  in  good  faith  attempted  to  fulfil  their 
undertaking,  and  supposed  they  had  done  so,  and  only  failed  by  mistake  and 
misapprehension,  which  should  not,  under  the  contract,  defeat  the  recovery  in 
toto,  but  only  subject  it  to  an  equitable  deduction  for  all  damage  sustained  by 
defendants,  it  seems  to  us  that  it  should  form  a  part  of  this  equity  to  the  defend- 
ants, not  to  be  required  to  pay  more  for  this  stock,  even  if  it  were  their  own, 
than  it  was  in  fact  worth,  or  could  have  been  made  to  benefit  the  plaintiffs. 

"  As  we  now  hold,  the  plaintiffs  were,  at  the  time  of  the  demand,  entitled  to 
recover,  upon  equitable  grounds,  a  sum  less  than  the  whole  price.  But  they 
demanded  the  whole  price,  and  the  defendants  refused.  The  demand  itself 
was  unreasonable.  Is  it  certain  a  reasonable  one  would  have  met  a  similar 
fate  ?  It  has  been  held  the  demand  must  be  reasonable,  to  render  the  refusal 
unreasonable.  Jameson  r.  Ware,  6  Vt.  610.  As,  therefore,  the  refusal  of 
defendants  seems  to  have  been  not  altogether  without  good  excuse,  and  in 
allowing  an  equitable  recovery,  in  a  case  like  the  present,  one  of  the  first  re- 
quirements seems  to  be,  that  no  injustice  shall  be  thereby  visited  upon  defend- 
ants, it  would  almost  necessarily  follow  that  we  should  not  suffer  the  plaintiffs 
to  recover  more  for  the  work  really  done  by  them  than  they  could  possibly  have 
realized  if  they  had  been  paid  at  the  time,  according  to  the  contract.  And,  as 
we  set  up  a  basis  of  recovery  upon  equitable  grounds,  and  one  not  contemplated 
in  the  contract,  we  should  not  visit  the  defendants  with  a  judgment  which  will 
make  them  worse  off  than  if  they  had  been  allowed  to  pay  the  sum  found  to  be 

•441 


440  CONSTRUCTION   OF   RAILWAYS.  CH.  XV. 

*  portion  of  the  work,  which  the  party  reserved  the  right  to  do  in 
order  to  hasten  the  work,  it  will  only  reduce  the  stock  payment 

due  upon  this  equitable  basis,  after  it  is  declared,  according  to  the  stipulations 
of  the  original  contract.  If  this  view  is  sound  and  equitable,  and  we  see  no 
reason  to  doubt  it,  the  plaintiffs,  as  to  the  stock  portion  of  their  judgment,  are 
entitled  to  the  highest  price  the  stock  bore  after  the  suit  was  commenced,  and 
before  the  final  judgment,  or,  if  they  choose,  the  court  will  strike  out  that  por- 
tion of  the  amount  reported,  and  require  the  certificates  of  stock  still  to  be  de- 
livered ;  and  if  defendants  refuse,  on  reasonable  request,  enter  up  judgment  for 
the  full  amount."  But  if  the  contractor  perform  extra  work  he  is  entitled  to 
recover  for  that,  in  money,  upon  an  implied  promise,  notwithstanding  by  his 
contract  he  was  to  accept  part  of  his  pay  in  stock  for  all  work  done  under  the 
contract.  Childs  v.  Som.  &  Ken.  Rallw.,  Cir.  Ct.  U.  S.  Maine  District,  May  1, 
1857.  20  Law  Rep.  661.  In  the  case  of  Cleveland  &  Pittsburgh  Railw.  v. 
Kelley,  5  Ohio,  N.  S.  180,  it  is  held,  that  where  one-fourth  of  the  amount  due  the 
contractors  is  to  be  taken  in  the  stock  of  the  company,  and  the  company  refuse 
to  deliver  the  stock  on  request,  they  are  only  liable  for  the  market  value  of  the 
stock  at  the  time  it  should  have  been  delivered.  The  court  profess  to  base  their 
opinion  upon  the  ground  that  in  contracts  of  this  character  there  is  not  under- 
stood to  be  any  election  reserved  by  the  company  to  pay  either  in  their  stock, 
or  in  money,  but  that  it  is  an  absolute  undertaking  to  deliver  so  much  stock  aa 
shall,  at  its  par  value,  be  equal  to  one-fourth  the  amount  due  the  contractor. 
It  does  not  readily  occur  to  us  how  this  relieves  the  question  from  the  apparent 
violation  of  principle,  in  allowing  the  company  to  refuse  to  give  certificates  of 
their  own  stock  which  they  have  contracted  to  do,  and  at  the  same  time  pay  less 
than  its  par  value.  It  is,  in  ordinary  cases,  equitable,  no  doubt,  and  always 
where  the  refusal  is  upon  the  ground  that  nothing  is  due  the  contractor.  Antey 
§  121,  n.  2. 

The  point  of  the  decision  is  thus  summed  up  by  Mr.  Justice  Stcan.  "  For 
these  reasons  we  are  of  the  opinion  that  no  such  election  was  contemplated  by 
either  of  the  parties  when  the  contract  was  entered  into  ;  that  the  law  relating  to 
trade  notes  and  contracts  of  a  like  kind,  has  no  application  to  the  agreement 
between  these  parties ;  that  it  was  an  exchange  of  work  for  stock,  in  which 
monetary  terms  were  necessarily  used,  not  for  the  purpose  of  expressing  real 
values,  but  as  the  only  mode  of  expressing  quantities  and  proportions  ;  that  the 
fourth  to  be  taken  in  stock  was  not  a  money  indebtedness,  but  a  stock  indebted- 
ness ;  and,  consequently,  that  the  company  could  derive  no  benefit  from  the  in- 
creased value  of  the  stock,  and  could  suffer  no  loss  by  its  depreciation ;  the 
damages  which  the  contractors  suffered  from  the  n,on-delivery  of  the  stock  being 
its  market  value." 

See  also  Boody  v.  Rut.  &  Bur.  Railw.  (Cir.  Ct.  U.  S.),  24  Vt.  660.  In  this 
case  it  was  held,  that  the  defendants  having  given  their  creditors  a  mortgage  upon 
their  road,  after  the  contract  with  the  plaintiff,  did  not  excuse  him  from  accept- 
ing the  stipulated  proportion  of  the  payments  in  stock. 

Nor  can  the  contractors,  in  such  case,  refuse  to  receive  the  stock,  because  the 
legislature,  in  the  mean  time,  altered  the  charter  of  the  company,  by  which  the 
capital  stock  and  debt  of  the  company  were  increased ;  nor  because  the  com- 
♦442 


§  122.  TIME  AND  MODE  OP  PAYMENT.  441 

*  dollar  for  dollar,  and  not  according  to  the  market  value  of  the 
stock  at  the  time.^ 

SECTION  XVIII. 

Hme  and  Mode  of  Payment. 


1.  No  time  Specified,  pen/maU  due  onlg  when 

work  completed. 

2.  Stock  paifmenta  must  ordinariltf  be  de- 

manded. 


8.  But  if  company  pay  monthly,  such  usage 
qualijies  contract. 

4.  Contract  to  build  wall  by  cubic  yard,  im- 
plies measurement  in  the  wall. 


§  122.  1.  Where  no  time  of  payment  is  specified  in  terms  in  the 
written  contract  between  the  parties  for  the  construction  of  a  por- 
tion of  a  railway,  it  was  held,  that  looking  to  the  contract  alone 
the  contractor  could  not  call  for  payment  either  of  the  cash  or 
stock  portion  of  the  contract,  until  a  complete  performance  of  the 
contract  on  his  part.^  Or,  upon  the  most  favorable  construction, 
until  some  distinct  portion  of  the  work,  for  which  the  contract  fixed 
a  specific  price,  was  accomplished.^ 

2.  In  regard  to  the  stock  portion  of  the  payments,  a  special  de- 
mand was  necessary  before  the  contractor  could  maintain  an  action 
for  it.i 

pany  voted  not  to  pay  interest  on  the  stock,  in  money,  as  they  had  before  done, 
it  not  appearing  that  the  value  of  the  stock  had  been  affected  by  either.  Moore 
V.  Hudson  River  Railw.,  12  Barb.  156. 

And  where  a  company,  in  settlement  with  a  contractor,  agreed  to  pay  him 
a  certain  amount,  in  stock,  or  the  bonds  of  the  company,  at  his  election,  the 
company  retaining  the  same  as  security  for  certain  liabilities  on  account  of  the 
contractor,  and  gave  the  contractor  a  certificate  of  such  stock,  with  an  agree- 
ment indorsed,  to  excliange  it  for  bonds,  at  his  election,  and  the  certificates  were 
then  returned  to  them,  as  their  indemnity ;  it  was  held,  that  the  company  were 
bound  to  deliver  the  bonds,  notwithstanding  the  treasurer  had  entered  the  shares 
in  the  books  of  the  company  as  the  property  of  the  contractor,  and  they  had  in 
consequence  been  sold  upon  execution  against  him.  Jones  o.  Portsmouth  & 
Concord  Railw.,  32  N.  H.  644. 

A  contractor  who  agrees  to  take  a  portion  of  his  pay  in  the  bonds  of  the  com- 
pany, has  no  such  interest  in  any  question,  in  regard  to  their  validity,  as  will 
prevent  a  court  of  equity  from  enjoining  those  of  a  county,  which  had  been 
delivered  to  the  company  without  a  proper  compliance  with  the  conditions  of 
the  statute,  under  which  the  subscription  was  made,  the  contractor  having  had 
knowledge  of  the  facts  from  the  first.  Mercer  County  r.  Pittsburgh  &  Erie 
Railw.,  27  Penn.  St.  389. 

'  Jones  &  Dow  v.  Chamberlain,  80  Vt.  196. 

»  Boody  c.  Rut.  &  Bur.  RaUw.,  24  Vt,  660  (U.  S.  Cir.  Ct.). 

•443 


442  CONSTRUCTION   OF    RAILWAYS.  CH.  XV. 

8.  But  where  it  appeared  that  the  company  were  accustomed  to 
make  monthly  payments  to  their  contractors,  upon  the  estimates  of 
the  engineer,  at  the  end  of  eacli  month,  and  that  they  had  so  dealt 
with  the  plaintiff,  it  was  held  that  this  must  be  considered  the  rule 
of  payment  under  the  contract,  established  by  mutual  consent  and 
binding  upon  the  parties.^ 

4.  A  contract  to  build  "  riprap  "  wall  for  fifty  cents  a  cubic  yard, 
in  the  absence  of  proof  of  any  general  usage  or  uniform  custom 
which  could  control  the  mode  of  measurement,  was  held  to  imply 
payment  by  the  cubic  yard  after  the  wall  was  constructed, ^ 


♦SECTION    XIX. 
Remedy  on  Contracts  for  Railway  Construction. 

1.   Recovery  on  general  counts.  \   2.   Amount  and  proof  governed  by  contract. 

§  123.  1.  It  is  a  familiar  principle  of  law  applicable  to  contracts 
for  the  performance  of  work  and  labor,  that  if  the  work  is  done  so 
that  nothing  more  remains  but  payment,  there  is  no  necessity  of  de- 
claring specially  upon  the  contract,  but  the  recovery  may  be  had 
under  the  general  counts  ;  and  it  will  make  no  difference  in  this 
respect  that  it  was  not  done  within  the  time  prescribed  by  the  con- 
tract, if  the  work  has  been  accepted  by  the  other  party,  or  the  time 
for  performance  extended  by  such  party,  or  the  work  has  been 
done  upon  some  permanent  property  of  the  other  party,  as  in  the 
case  of  building  a  railway.^ 

2.  But  ordinarily  the  contract  will  govern  as  to  price  and  other 
incidents,  so  far  as  it  can  be  traced.  But  where  the  party  for 
whom  the  labor  is  performed  wilfully  hinders  and  obstructs  the 
progress  of  the  work,  it  has  been  held  he  was  liable,  as  upon  a 
quantum  meruit}  But  in  such  case  the  party  must  prove  the  per- 
formance of  the  labor,  by  such  proof  as  would  be  competent  in  an 
action  on  the  special  contract,  and  cannot  treat  the  dealing  as  if  it 
had  been  matter  of  account  from  the  first.^ 

•  Wood  V.  Vermont  Central  Railw.,  24  Vt.  608. 

'  Merrill  c.  Ithaca  &  Owego  Railw.,  16  Wendell,  586  ;  8.  c.  2  Am.  Railw.  C. 
421. 

•444 


§  123  b.      REMEDIES   OF  LABORERS   AND  SUB-CONTRACTORS.  443 

SECTION   XX. 
Mechanic's  Lien. 

1.   Such  lien  cannot  exist  in  regard  to  a  rail-  I  2.   Opinion  of  Scott,  J. 
waif.  I 

§  123  a.  1.  It  has  been  considered  that  although  a  public  railway 
may  come  within  the  literal  import  of  the  terms  used  in  a  statute, 
to  secure  material-men  and  laborers,  by  what  is  denominated  a 
mechanic's  lien  upon  "  buildings  or  other  *  improvements,"  yet  that 
the  public  have  such  an  interest  in  pul)lic  works  of  this  cliaracter, 
that  it  cannot  reasonably  be  presumed  that  such  terms  were  in- 
tended to  include  the  bridges  and  culverts  upon  the  line  of  a  pub- 
lic railway.^ 

2.  Tlie  language  of  Scott,  J.,  shows  the  ground  of  the  decision. 
"  Although  railway  companies  in  some  respects  resemble  private 
corporations,  yet,  as  they  are  organized  for  the  public  benefit,  the 
state  takes  a  deep  interest  in  them,  and  regards  them  as  matters  of 
public  concern.  The  establishment  of  this  railway  is  regarded  as 
a  public  work  established  by  public  authority,  intended  for  the  pub- 
lic use  and  benefit."  The  learned  judge  argues,  that  such  a  lien  to 
be  effectual  must  be  liable  to  defeat  the  object  of  the  work,  and 
therefore,  and  as  the  legislature  have  provided  a  specific  remedy 
for  laborers,  it  is  not  to  be  supposed  that  a  mechanic's  lien  also 
exists  iu  regard  to  the  structures  on  the  works. 

SECTION   XXI. 
Remedies  on  behalf  of  Laborers  and  Suh-contradors. 


8.  But  a  sub-contractor  cannot  go  against  tKe 
proprietor  of  the  works,  although  laborer 
employed  by  him  may. 


1.  Sub-contractors  not  bound  by  stipulations 

of  contractor. 

2.  habarert  on  public  works  have  a  ckdm 

against  the  company. 

§  123  b.  1.  A  sub-contractor  who  has  completed  his  work  to  the 
acceptance  of  the  engineers  appointed  to  pass  upon  its  sufficiency, 
is  entitled  to  recover  of  the  contractor  the  sum  retained  upon  his 

'  Dimn  r.  North  Miasouri  Railw.,  24  Mo.  493. 

•446 


444  CONSTRUCTION  OP  RAILWAYS.  CH.  XV. 

estimates,  as  security  for  the  completion  of  the  work,  notwithstand- 
ing any  deficiency  in  the  performance  of  the  contractor,  whereby 
he  is  himself  unable  to  recover  such  deficiency  of  the  company.^ 

2.  By  statute  in  many  of  the  states,  the  workmen  upon  a  railway, 
although  in  the  employment  of  the  contractor,  have  a  claim  for  any 
arrears  of  wages,  not  exceeding  a  certain  period,  upon  the  com- 
pany, and  this  provision  has  been  held  to  extend  equally  *  to  work- 
men employed  by  sub-contractors.^  And  the  provisions  of  this 
statute  being  only  a  matter  of  general  police,  will  be  equally  bind- 
ing upon  all  railway  companies,  whether  chartered  before  or  after 
the  passing  of  the  statute.^ 

3.  But  the  sub-contractor  himself  cannot  pass  by  his  immediate 
employers  and  maintain  an  action  against  the  principal  proprietor 
of  the  work.^ 

>  Blair  v.  Corby,  29  Mo.  480,  486. 

"  Grannahan  ».  Hannibal  &  St.  Joseph  Railw.  Co.,  30  Mo.  546.  See  also 
McClusky  V.  Cromwell,  1  Kern.  693;  Kent  v.  N.  Y.  Cent.  Railw.,  2  id.  628; 
Peters  ».  St.  Louis  &  Iron  M.  Railw.  Co.,  23  Mo.  107. 

'  Branin  ».  Conn.  &  Pass.  Railw.  Co.,  31  Vermont,  214;  Lake  Erie,  &c. 
Eailw.  Co.  V.  Eckler,  13  Ind.  67.     See  Boswell  v.  Townsend,  37  Barb.  205. 
*446 


§124. 


EXCESSIVE  TOLLS,   FARE,  AND   FREIGHT. 


445 


♦CHAPTER   XVI. 


EXCESSIVB   TOLLS,   FARE,   AND   FREIGHT. 


1.  English  companies  created  sometimes,  for 

maintaining  road  only. 

2.  Where  excessive  tolls  taken  may  be  recoo- 

eredback. 
8.  So  also  may  excessive  fare  and  freight. 
4.   By  English  statute,  packed  parcds  must 

be  rated  in  mass. 
6.   Nature  of  railway  traffic  requires  unity  of 

management  and  control. 

6.  Tolls  upon  railways  almost  unknoum  here. 

Fare  and  freight  often  limited. 

7.  Guaranty  of  certain  projit  on  investment 

lawful. 

8.  Restriction  of  freight  to  certain  rate  per 

ton,  extends  to  whole  line. 


9.   Need  not  declare  for  tolls. 

10.  Mode  of  establishing  and  requisite  proof. 

11.  A  jyrovision  in  a  railway  charter  for  the 

payment  of  a  certain  tonnage  to  the 
state  is  only  a  mode  of  taxation. 

12.  Where  a  comjiany  is  allowed  to  take  tolls 

on  sections  of  their  road  this  makes  each 

section  a  distinct  work. 
18, 14.  Discussion  of  cases  in  New  York  in 

regard  to  the  difference  between  fares 

taken  in  the  cars  and  at  the  stations. 
15.   Fares  fixed  by  statute  are  payable  in 

legal  tender  notes. 


§  124.  1.  By  the  English  statutes,  companies  are  created  who 
own  the  railway  stations,  &c.,  merely,  and  who  are  empowered  to 
demand  certain  tolls  of  other  persons,  or  companies,  for  the  use  of 
such  road. 

2.  In  such  cases,  if  illegal  tolls  are  demanded  and  paid,  the 
excess  may  be  recovered  back,  as  money  had  and  received,  to  the 
use  of  the  person  paying  it,  upon  the  general  principles  of  law 
applicable  to  the  subject  of  tolls,  and  the  demand  and  receipt  of 
excessive  tolls.* 

Where  the  English  statute  ^  gave  the  company  the  right,  where 
any  person  should  fail  to  pay  the  toll  due  upon  any  carriage,  to 
detain  and  sell  the  same,  it  was  held  incumbent  upon  the  company 
first  to  demand  the  sum  due  for  toll,  and  that  this  was  a  condition 
precedent  to  the  right  to  sell  under  the  statute.^  It  was  also  con- 
sidered here  that  a  chargo  for  transporting  carriages  back  is  not  a 
toll,  but  something  which  may  be  compensated  by  special  agree- 
ment between  the  parties ;  and  if  it  be  demanded  as  *  part  of  the 

'  Fearnley  v.  Morley,  6  B.  &  C.  26.  See  also  this  subject  very  extensively 
examined  in  Centre  Turnpike  Co.  r.  Smith,  12  Vt.  212 ;  post,  §  143.  Tolls  are 
a  payment  for  passing  along  the  line  of  the  railway,  and  should  be  received  with 
reference  to  the  number  of  carriages  passing.  Simpson  v.  Denison,  10  Hare, 
61 ;  8.  c.  13  Eng.  L.  &  Eq.  369.  »  8  and  9  Vict.  c.  20,  §  97. 

»  Field  V.  Newport,  Ab.  &  Hereford  Railw.,  3  H.  &  N.  409. 

•447,448 


446  EXCESSIVE   TOLLS,   FARE,  AND  FREIGHT.  CH.  XVI. 

toll,  being  an  illegal  claim,  as  such,  it  vitiates  the  entire  demand 
and  renders  it  illegal. 

3.  And  the  same  rule  has  been  extended  to  the  recovery  of 
money  overpaid  upon  an  exorbitant  and  illegal  demand  of  freight 
or  fare  by  railways.  And  the  recovery  may  be  had,  although 
the  person  paying  it  did  not  tender  any  specific  sum,  as  due,  and 
although  a  portion  of  the  overcharge  was  on  account  of  what  was 
claimed  to  be  due  another  company.* 

4.  And  under  the  English  statutes,  packed  parcels  of  the  same 
class  are  required  to  be  rated  in  mass.^ 

5.  Most  of  the  business  upon  public  railways,  in  this  country,  and 
in  England,  at  the  present  time,  is  almost  of  necessity  transacted 
by  the  companies  themselves.  The  very  nature  of  the  business 
seems  to  require  absolute  unity  in  the  management  and  control 
of  the  traffic,  and  especially  in  this  country,  where  a  large  pro- 
portion of  the  roads  are  operated  upon  a  single  track,  requiring 
the  utmost  watchfulness  and  circumspection  to  avoid  collisions. 
We  suppose  the  idea  of  operating  a  railway,  with  large  traffic, 
in  England,  upon  a  single  track,  would  be  regarded  as  too  glar- 
ing an  absurdity  to  be  seriously  entertained,  although  they  have 
some  unimportant  single  track  railways.  But  in  this  country  it  is 
rather  the  rule  than  the  exception,  and  many  of  the  continental 
railways  in  Europe  have  only  a  single  track. 

6.  The  matter  of  tolls  upon  railways  is  a  thing  almost  unknown 
in  tliis  country,  and  very  little  practised  anywhere  at  present. 
But  the  English  special  acts,  and  the  American  railway  charters, 
very  often  fix  the  maximum  of  freight  and  fare  which  it  shall  be 
lawful  for  the  company  to  receive,  and  if  tolls  are  allowed  to  be 
taken  of  other  companies  or  persons,  these  also  are  limited. 

*  Parker  v.  The  Bristol  &  Exeter  Railw.  Co.,  6  Exch.  702 ;  s.  c.  6  Railw.  C. 
776.  See  also  Snowden  v.  Davis,  1  Taunt.  359 ;  Atlee  v.  Backhouse,  3  M.  & 
W.  633 ;  and  Spry  p.  Emperor,  6  M.  &  W.  639,  where  the  general  subject  is 
discussed.  In  Parker  v.  The  Great  Western  Railw.  Co.,  3  Railw.  C.  563,  the 
very  point  is  decided.  Crouch  v.  London  &  N.  W.  Railw.  Co.,  2  Car.  &  K. 
789;  Crouch  v.  Great  Northern  Railw.,  25  Eng.  L.  &  Eq.  449, 

»  Parker  v.  The  Great  Western  Railw.  Co.,  11  C.  B.  545 ;  8.  c.  8  Eng.  L.  & 
Eq.  426.  This  subject  of  overcharge  and  the  right  to  recover  back  the  excess, 
is  extensively  discussed  in  this  case,  and  in  the  case  of  Edwards,  Assignee  of 
Edwards,  v.  The  Great  Western  Railw.  Co.,  11  C.  B.  588;  8.  C.  8  Eng.  L.  & 
Eq.  447 ;  Crouch  v.  Great  Northern  Railw.  Co.,  9  Exch. '556;  8.  c.  25  Eng.  L. 
&  Eq.  449. 


§  124.  EXCESSIVE  TOLLS,   PARE,  AND   FREIGHT.  447 

*  7.  A  guaranty  of  a  certain  amount  of  profit  to  a  company,  by 
other  companies,  in  consideration  of  the  right  to  use  the  track  of 
such  company,  is  lawful.^ 

8.  The  restriction  in  the  charter  of  the  Camden  &  Amboy  Rail- 
way of  freight  to  eight  cents  per  ton  per  mile,  extends  to  the  whole 
distance  of  the  line  of  said  company,  although  some  of  it  is  by 
water,  and  includes  the  auxiliary  roads  through  New  Brunswick 
and  Trenton." 

9.  In  an  action  to  recover  tolls  due  to  a  railway  it  is  not  neces- 
sary to  describe  the  dues  as  tolls.  Any  description  which  suflBi- 
ciently  identifies  the  nature  of  the  service  for  which  compensation 
is  demanded,  is  all  that  is  required.^ 

10.  Freights  upon  a  railway  may  be  established  by  the  directors, 
or  by  their  agents  ;  and  their  assent  will  be  presumed,  if  nothing 
appear  to  the  contrary.^  And  where  the  directors  are  required  to 
establish  freights,  and  they  do  establish  a  printed  tariff,  that  is  to 
be  regarded  as  the  original ;  and  where  copies  of  such  tariff  are 
required  to  be  posted  at  the  depots  or  stations  of  the  company,  that 
affords  sufficient  excuse  for  the  absence  of  such  copies  to  justify 
the  admission  of  secondary  evidence.^ 

11.  A  provision  in  the  charter  of  a  railway  company  that  it  shall 
pay  a  certain  tonnage  to  the  state  upon  all  freight  transported  by 
it,  is  only  a  mode  of  taxation,  and  is  not  in  conflict  with  any  pro- 
vision of  the  United  States  constitution  securing  to  Congress  the 
exclusive  power  of  regulating  commerce  with  foreign  nations  and 
among  the  states,  and  prohibiting  the  states,  without  the  consent 
of  Congress,  from  levying  duties  on  imports  and  exports.  The  com- 
pany by  accepting  the  charter  containing  such  a  provision,  virtually 
made  an  express  contract  to  perform  *  it,  and  have  no  just  cause  of 
complaint,  treating  the  provision  either  as  a  law  or  a  contract.® 

•  Great  N.  Railw.  r.  S.  Yorkshire  Railw.,  9  Exch.  642. 

'  Camden  &  Amboy  Kailw.  r.  Briggs,  1  N.  J.  (Zab.)  406. 
Where  one  company  leased  its  line  to  another,  at  a  certain  rate,  for  all  min- 
erals transported,  among  other  commodities,  it  was  held,  that  the  owners  of 
minerals  transported  upon  such  line,  could  not,  by  injunction,  compel  the  lessees 
to  transport  minerals  upon  the  same  terms  on  which  they  agreed  with  the  other 
company,  by  way  of  compensation  to  them,  the  latter  being  a  rent  merely,  and 
not  a  rate  of  toll  or  freight.  Finnic  r.  Glasgow  &  Southwestern  Railw.  Co., 
2  McQu.  Ho.  Lds.  177. 

'  ^lanchester  &  Lawrence  Railw.  v.  Fisk,  33  N.  H.  297. 
Pennsylvania  Railw.  v.  The  Commonwealth,  3  Grant^s  Cas.  128.     As  to  tbe 

*  449,  460 


448  EXCESSIVE  TOLLS,   FARE,   AND   FREIGHT.  CH.  XVI. 

12.  And  a  provision  in  the  charter  of  a  railway  company  or 
other  road  company,  that  it  may  demand  tolls  upon  any  particu- 
lar portion  of  its  road  as  soon  as  completed  and  in  operation, 
has  been  construed  to  create  such  portion  a  distinct  public  work, 
not  liable  to  be  affected  by  failure  to  complete  the  remainder  of 
the  work  embraced  in  the  same  charter.  But  if  the  work  is  not 
done  in  a  proper  manner,  that  will  be  a  cause  of  forfeiture  not 
cured  by  the  provision  allowing  tolls  to  be  levied  upon  distinct 
portions  of  the  entire  line.^^  But  it  is  here  left  in  doubt  whether 
such  defect  in  construction  will  operate  to  forfeit  the  entire  road 
or  only  those  sections  where  such  defects  occur. 

13.  We  have  discussed  the  question  of  railway  companies  mak- 
ing a  discrimination  between  fares  paid  in  the  cars  and  at 
their  stations.^^  Under  the  New  York  statute,  which  allows  of 
this  discrimination  only  where  the  company  keep  their  ticket  of- 
fice open,  it  was  held  the  company  could  only  make  that  discrimi- 
nation in  the  cases  specified  in  the  statute,  and  not  in  other  cases, 
even  if  the  passenger  took  the  cars  after  midnight,  the  company 
being  required  to  keep  the  ticket  office  open  only  until  9  o'clock, 
P.  M.12 

14.  This  question  is  still  further  discussed  in  a  laiter  case  ;  ^^ 
but  the  questions  turned  chiefly  upon  the  construction  of  the  stat- 
ute in  force  there,  requiring  the  company  to  keep  all  their  ticket 
offices  open  one  hour  before  the  trains  start,  except  between  9 
P.  M.,  and  5  A.  M.,  when  they  are  only  required  to  do  so  at  Utica 
and  other  principal  offices,  and  which  also  enacts,  that  if  any  per- 
son shall,  at  any  station  where  a  ticket  office  is  kept  open,  enter  the 
cars  as  a  passenger,  without  having  first  purchased  a  ticket,  it 
shall  be  lawful  for  the  company  to  require  five  cents  extra  fare  of 
such  person  ;  and  it  was  decided  that  the  extra  fare  *  could  only  be 
demanded  where  the  company  kept  a  ticket  office  open.  And  it  will 
make  no  difference  that  the  passenger  entered  the  cars  at  an  hour 
when  the  ticket  offices  were  required  to  be  kept  open,  if  such  was 
not  the  fact.     It  was  also  held,  that  the  company,  by  so  demanding 

right  to  tax  shares  in  a  corporation  for  county  purposes,  see  Lycoming  County 
V.  Gamble,  47  Penn.  St.  106. 

'»  The  People  v.  J.  &  M.  Plank-Road  Co.,  9  Mich.  285. 

"  Ante,  §  28. 

»  Chase  v.  N.  Y.  Central  Railw.,  26  N.  Y.  523. 

»  Nellis  r.  N.  Y.  Central  RaUw.,  30  N.  Y.  505. 
*461 


§  124.  EXCESSIVE  TOLLS,  FARES,   AND  FREIGHT.  449 

and  receiving  the  five  cents  extra  fare  when  not  entitled  to  receive 
it,  became  liable  to  the  penalty  of  $50,  under  the  statute,  for  tak- 
ing more  fare  than  allowed  by  law. 

15.  Where  the  company  is  restricted  by  statute  to  the  charge  of 
two  cents  fare  per  mile,  that  will  not  justify  their  demanding  fares 
in  gold,  or  its  equivalent  in  currency.  A  fare  is  a  debt,  within  the 
terms  of  the  act  of  Congress  creating  the  legal  tender  notes,  and  is 
payable  in  that  currency,  as  much  as  any  other  debt.^* 

"  Lewia  v.  N.  Y.  Central  Railw.,  49  Barb.  330, 
29 


450 


LIABILITY   FOB  FIRES  BY  ENGINES. 


CH.  XVIL 


^CHAPTER  XVII. 


UABILITY  FOB  FIRES,   COMMUNICATED   BY  COMPANY'S  ENGINES. 


1.  Fact  of  fires  hang  communicated  evidence 

of  negligence. 

2.  This  was  at  one  time  questioned  in  Eng- 

land. 

3.  Opinion  of  Tm^eX,  Ch.  J.,  upon  this  point. 

4.  English  companies  fed  hound  to  use  pre- 

cautions against  fire. 
6.   Rule  of  evidence,  in  this  country,  more  fa- 
vorable to  companies. 

6.  But  the  company  are  liable  for  damage  by 

fire  through  want  of  care  on  their  part. 

7.  One  is  not  precluded  from  recovery,  by 

placing  buildings  in  an  exposed  situa- 
tion. 

8.  Where  insurers  pay  damages  on  insured 

property,  may  have  action  against  com- 
pany. 


9.    Where  company  made  liable  for  injury 
to  all  property,  are  allouxd  to  insure. 

10.  Construction  of  statutes  making  compa- 

nies liable  for  loss  by  fires. 

11.  Extent  of  responsibility  of  insurer  of 

goods,  to  company. 

12.  Construction    of  statute  as  to  engines 

which  do  not  consume  smoke. 

13.  Construction  of  Massachusetts  statute  and 

mode  of  trial. 

14, 16.  For  what  acts  railway  companies  may 
become  responsible  without  any  actual 
negligence. 

16.  Company  not  responsible  for  fires  result- 
ing from  other  fires  caused  by  them. 


§  125.  1.  In  the  English  courts  it  seems  to  have  been  settled, 
as  early  as  the  year  1846,^  upon  great  consideration,  that  the  fact 
of  premises  being  fired  by  sparks  emitted  from  a  passing  engine, 
is  prima  facie  evidence  of  negligence  on  the  part  of  the  company, 
rendering  it  incumbent  upon  them  to  show  that  some  precau- 
tions had  been  adopted  by  them  reasonably  calculated  to  prevent 
such  accidents. 

2.  In  an  earlier  case,  where  the  facts  were  reported,  by  the 
judge,  at  Nisi  Prius,  for  the  opinion  of  the  full  court,  that  a  stack 
of  beans  near  the  track  of  the  railway  was  fired  and  consumed 
by  sparks  from  the  company's  engine,  of  the  ordinary  construc- 
tion, and  used  in  the  ordinary  mode,  the  court  said  the  facts 
reported  did  not  show,  necessarily,  either  negligence  or  no  negli- 
gence.    That  was  a  question  for  the  jury.^ 

3.  But  the  court  in  the  case  of  Piggott  v.  Eastern  Co.'s  Rail- 
way, went  much  further.     Tindal,  Ch.  J.,  said  :  "  The  defendants 

»  Piggott  V.  Eastern  Counties  Railw.  Co.,  3  C.  B.  229. 
.     •  Aldridge  v.  Great  Western  Railw.,  3  M.  ife  G.  616 ;  2  RaUw.  C.  862. 
♦462 


§  125.  LIABILITY   FOR  FlUES  BY   ENGINES.  451 

are  a  company  intrusted  by  the  legislature  with  an  agent  of  an 
extremely  dangerous  and  unruly  character,  for  their  own  private 

*  and  particular  advantage  ;  and  the  law  requires  of  tliem, 
that  they  shall  in  the  exercise  of  the  rights  and  powers  so  con- 
ferred upon  them,  adopt  such  precautions  as  may  reasonably  pre- 
vent damage  to  the  property  of  third  persons,  through  or  near 
which  their  railway  passes.  The  evidence  in  this  case  was  abun- 
dantly sufficient  to  show  that  the  injury  of  which  the  plaintiff  com- 
plains was  caused  by  the  emission  of  sparks  or  particles  of 
ignited  coke,  coming  from  one  of  the  defendants'  engines  ;  and 
there  was  no  proof  of  any  precaution  adopted  by  the  company 
to  avoid  such  a  mischance.  I  therefore  think  the  jury  came  to 
a  right  conclusion,  in  finding  that  the  company  were  guilty  of 
negligence,  and  that  the  injury  complained  of  was  the  result  of 
such  negligence.  There  are  many  old  authorities  to  sustain  this 
view  ;  for  instance,  the  case  of  Mitchil  v.  Alestree,  1  Vent.  295,  for 
an  injury  resulting  to  the  plaintiff"  from  the  defendant's  riding  an 
unruly  horse  in  Lincoln's  Inn  Fields  ;  that  of  Bayntine  v.  Sharp, 
1  Lutw.  90,  for  permitting  a  mad  bull  to  be  at  large  ;  and  that  of 
Smith  V.  Pelah,  2  Stra.  1264,  for  allowing  a  dog,  known  to  be  ac- 
customed to  bite,  to  go  about  unmuzzled.  Tlie  precautions  sug- 
gested by  the  witnesses  called  for  the  plaintiff"  in  this  case,  may  be 
compared  to  the  muzzle  in  the  case  last  referred  to.  The  case  of 
Beaulien  v.  Puiglam,  in  the  Year-Books,  P.  2,  H.  4,  fol.  18,  pi.  5, 
comes  near  to  this.  There,  the  defendant  was  charged,  in  case,  for 
80  negligently  keeping  his  fire  as  to  occasion  the  destruction  of  the 
plaintiff^s  property  adjoining.     The  duty  there  alleged   was, — 

*  quare  cum  secundum  legem  et  coniuetudinem  regni  nostri  Anglice  hao- 
tenus  obtentam,  quod  quilihet  de  eodem  regno  igncm  suum  salvd  et 
secure  custodiat,  et  custodire  teneatur,  ne  per  ignem  suum  damnum 
aliquod  vicinis  suis  eveniat.^  " 

4.  The  principle  of  this  case  seems  to  have  been  acquiesced 
in  by  the  railways  in  England,'  and  such  precautions  used,  as 

*  Hammono.  Southeastern  Railw.  Co.,  Maidstone  Spring  Assizes,  1845,  before 
Lord  Dettman,  Ch.  J.,  for  the  destruction  of  farm  buildings,  including  a  thatched 
bani,  by  sparks  emitted  from  the  defendants'  engines  in  passing  along  the  line  of 
their  railway.  There  was  evidence  of  the  fire  being  so  caused,  and  that  defend- 
ants' engines  had  no  wire  guard,  or  perforated  plate,  to  prevent  the  escape  of 
the  spark;*,  although  both  were  in  use  before  that  time.  There  was  evidence  in 
this  case  that  it  was  principally  where  the  engines  were  overtasked  that  they  were 
liable  to  emit  sparks.    His  Lordship  directed  the  jury  that  it  lay  upon  the  plain- 

•468 


452  LIABILITY  FOR  FIRES   BY   ENGINES.  CH.  XVII. 

*  to  secure  the  engines  against  emitting  sparks.  In  this  last  case 
it  was  held  proper  evidence  to  go  to  the  jury  that  the  company's 
engines  had  before,  in  passing  along  the  line,  emitted  sparks,  a 
sufficient  distance  to  have  done  the  injury  in  the  present  case, 
as  a  means  of  ascertaining  the  possibility  of  the  building  being 
fired  in  the  manner  alleged.  The  testimony  in  this  case  showed, 
that  the  danger  of  emitting  sparks  is  very  much  increased  by 
overtasking  the  engine,  and  that  it  may  be  altogether  avoided  by 
shutting  ofif  the  steam  in  passing  a  place  where  there  is  danger 
from  sparks,  or  that  the  danger  may  be  guarded  against  by 
mechanical  precautions. 

The  subject  has  been  a  great  deal  discussed  in  more  recent 
English  cases.*  In  this  case  it  was  held  by  Bramwell  B.,  at  the 
jury  trial,  and  his  views  seem  to  have  been  sustained  by  the 
court  of  exchequer,  that  the  mere  fact  of  the  company  using  fire 
as  a  means  of  locomotion,  from  which  occasional  fires  will  be  com- 
municated, even  with  the  utmost  care  to  prevent  it,  made  them 
responsible  for  damage  caused  thereby.  But  in  the  exchequer 
chamber  the  judges  seem  to  have  been  agreed,  that  the  legisla- 
ture having  legalized  this  mode  of  locomotion,  it  could  not  sub- 
ject the  company,  while  pursuing  a  legal  business,  in  a  legal 
mode,  to  damage  thereby  caused  to  others,  unless  through  some 
degree  of  neglect.  If  the  company  resort  to  all  known  precau- 
tions against  fire  they  are  not  liable. 

6.  But  in  this  country  it  must  be  confessed  the  rule  of  the 
liability  of  railways  for  damage  done  by  fire  communicated  by 
their  engines,  is  more  favorable  to  the  companies  than  in  Eng- 
land.   It  seems  to  have  been  assumed,  in  this  country,  that  the 

*  business  of  railways  being  lawful,  no  presumption  of  negligence 
arises  from  the  fact  of  fire  being  communicated  by  their  engines.^ 

tiff  to  establish  negligence ;  they  were  to  consider  that  the  plaintiff  might  have 
saved  all  hazard  by  tiling  his  bam,  and  also  whether  the  train  was  driven  too  fast. 
The  plaintiff  had  a  verdict,  and  the  court  subsequently  refused  a  new  trial. 
Taylor  v.  Same  Co.  was  tried  at  same  terra,  with  similar  proof  and  the  same  re- 
sult. "  Walford  on  Railways,  183,  184,  and  notes. 

«  Vaughn  r.  Taff-Vale  Railw.,  3  H.  &  N.  743 ;  8.  C.  in  Exchequer  Chamber, 
6  H.  <fe  N.  679 ;  8.  c.  6  Jur.  N.  S.  899.  See  also  The  King  v.  Pease,  4  B.  & 
Ad.  30,  upon  which  the  last  case  is  decided  in  Exchequer  Chamber.  In  reference 
to  the  decision  in  the  Court  of  Exchequer,  we  said  in  our  last  edition  it  was 
going  further  than  any  just  principle  would  allow,  unless- the  defendant's  business 
is  regarded  as  unlawful.     Post,  pi.  14,  15,  and  note. 

*  Rood  V.  N.  Y.  &  Erie  Railw.,  18  Barb.  80 ;  Lyman  v.  Boston  &  W.  Railw., 
•  464,  465 


§  125.  LIABILITY   FOR  FIRES  BY  ENGINES.  458 

But  after  other  probable  modes  of  accounting  for  the  fire  have 
been  disproved,  the  onus  is  on  the  company  to  prove  that  the 
fire  was  not  communicated  by  their  engines  of  the  train  passing 
at  the  time.® 

6.  In  this  country  it  has  been  held,  that  proof  that  sparks  have 
upon  other  occasions  been  emitted  and  caused  fires  along  the 
line  of  the  road,  is  not  admissible,  either  to  show  that  defend- 
ants' engine  caused  the  damage,  or  to  rebut  defendants'  proof  of 
care  and  diligence  in  using  their  engines.^  But  the  testimony 
seems  to  have  been  received  in  other  cases.^  All  the  cases  upon 
this  subject  hold  railways  bound  to  the  exercise  of  care,  skill, 
and  diligence,  to  prevent  fires  being  communicated  in  this  mode, 
and  make  them  liable  in  case  of  damage  through  their  negli- 
gence.® 

7.  And  one  is  not  precluded  from  recovery  in  such  cases,  by 
having  placed  his  buildings  or  other  property  in  an  exposed  posi- 
tion.^^^  We  cannot  forbear  to  add  that  the  interference  of  the  legisla- 
tures upon  this  subject,  in  many  of  the  American  states,  seems 
to  us  an  indication  of  the  public  sense,  in  favor  of  placing  the 
risk  in  such  cases  upon  the  party  in  whose  power  it  lies  most 
to  prevent  such  injuries  occurring.  There  seems  to  us  both 
justice  and  policy  in  the  English  rule  upon  the  subject.  And 
in  a  recent  case,^^  it  was  held,  in  actions  against  railway 
companies  for  damages  caused  by  fires  communicated  by  coals 
upon  the  track,  just  after  the  passing  of  a  train,  that  it  was  com- 

4  Cush.  288 ;  Burroughs  r.  The  Housatonic  Railw.,  15  Conn.  124.  In  this  case 
the  court  compare  the  injury  to  that  of  fire  communicated  by  sparks  from  the 
chimney  of  a  dwelling-house.  Where  the  statute  reijuires  the  company  to  show 
that  the  fire  occurred  "  without  any  negligence  on  their  part,"  it  was  held  suffi- 
cient to  show  that  their  engines  were  properly  constructed,  in  good  order,  and 
had  the  usual  apparatus  for  preventing  the  escape  of  sparks,  and  were  managed 
by  discreet  persons.     B.  &  S.  R.  v.  Woodrull',  4  Maryland,  242. 

'  Sheldon  v.  Iludson  River  R.,  4  Keriuui,  218. 

'  Baltimore  &  Susquehannah  Railw.  v.  Woodruff,  4  Maryland,  242. 

*  McCready  v.  The  Railw.  Co.,  2  Strob.  368.  Sheldon  v.  Hudson  River 
Railw.,  4  Keman,  218 ;  8.  c.  29  Barb.  226. 

»  15  Conn.  124;  Huyett  ».  Phil.  &  R.  Railw.,  23  Penn.  St.  373.  The  jury 
are  to  determine  the  question  of  negligence.  Id.  The  company  are  bound  to 
use  more  care  in  regard  to  fires  in  a  very  dry  time,  or  where  property  is  very 
much  exposed.     Id. 

"•  Coop  c.  Champ.  Trans.  Co.,  1  Denio,  91,  99,  101. 

"  Field  V.  New  York  Central  Railw.,  32  N.  Y.  339. 


464  LIABILITY   FOR   FIRES   BY   ENGINES.  CH.  XVII. 

petent  to  show  that  the  company's  locomotives,  in  passing  over  the 
road  on  former  occasions,  dropped  coals  upon  the  track  at  or  near 
the  same  place  ;  and  also,  where  it  was  in  evidence  that  engines 
properly  constructed  and  in  good  order  will  not  drop  coals  upon 
the  track,  that  the  fact  of  defendants'  engines  doing  so,  is,  in 
itself,  evidence  of  negligence,  sufficient  to  charge  the  defendants, 
thus  imposing  upon  them  the  burden  of  showing  that  they  were 
not  culpable. 

8.  And  where  the  railway  companies  are  made  liable  for  all 
damage  in  this  way,  as  they  are  in  Massachusetts,  and  some  of 
the  other  states,  by  statute,  if  one  whose  property  is  insured  suf- 
fer loss  in  this  way,  and  the  insurers  pay  him  his  entire  loss, 
*  they  may  recover  in  his  name  against  the  company .^^  And  it 
was  decided  in  one  case  that  the  insurer  might  recover  of  the 
carriers  in  the  name  of  the  consignor,  on  whose  behalf  the  policy 
was  effected,  after  having  paid  the  amount  of  the  loss  to  the  con- 
signor.^^ 

9.  By  statute  in  some  of  the  states,  as  we  have  seen,  railways 
are  made  liable  for  any  injury  to  "  buildings  or  other  property 
of' any  person  —  by  fire  communicated,"  by  their  locomotive  en- 
gines, and  it  is  sometimes  specially  provided  that  railways  shall 
have  an  insurable  interest  in  such  property.  But  it  has  been 
held  that  such  statutory  liability  only  extends  to  property  of  a 
permanent  nature,  and  upon  which  an  insurance  may  be  ef- 
fected ;   and  that  for  injuries  of  this  kind  to  other  property  the 

**  Hart  V.  The  Western  Railw.,  13  Met.  99.  And  under  such  a  statute,  -where 
the  sparks  from  the  engine  communicated  fire  to  a  shop,  and  the  wind  drove  the 
sparks  from  the  shop  sixty  feet  across  the  street,  and  set  fire  to  a  house,  it  was 
held  that  this  second  fire  must  be  regarded  as  "  communicated  "  by  the  company's 
engine,  within  the  statute.     Id.     But  see  j^ost,  pi.  16. 

In  a  contract  of  insurance  in  favor  of  a  railway  company,  upon  ' '  cars  of  all 
descriptions"  —  "  on  the  line  of  their  road  and  in  actual  use,"  where,  in  answer 
to  the  inquiry  "where  the  property  was  situated,"  the  company  reply,  "from 
Boston  to  Fitchburg  and  branches  this  side  of  Fitchburg ;  "  and  the  cars  of  the 
plaintiff's  company  loaded  with  ice,  standing  upon  a  track  belonging  to  the 
proprietors  of  a  wharf  where  the  ice  was  unloaded,  but  communicating  with 
the  track  of  the  Fitchburg  road,  were  burned  by  a  fire  communicated  from 
the  wharf,  it  was  held  to  come  within  the  contract,  and  the  insurance  com- 
pany were  held  liable.  Fitchburg  Railw.  v.  Charlestown  Mutual  Ins.  Co.,  7 
Gray,  64.  • 

'^  Bumside  e.  Steamboat  Company,  10,  Rich.  (S.  C.)  113;  Garrison  r. 
Memphis  Ins.  Co.,  19  How.  (U.  S.)  312. 

*456 


§  125.  UABILITT   FOR   FIRES  BY  ENGINES.  455 

company  will  only  be  responsible  for  negligence,  unskilfulness, 
or  imprudence  in  running  and  conducting  their  engines.^* 

*  10.  And  where  by  statute  railway  companies  are  made  liable 
for  all  damages  caused  to  property  so  near  the  road  as  to  be 
exposed  by  fire  from  their  engines,  it  was  held  to  extend  to 
all  property  subject  to  insurance,  and  to  include  growing  trees.^ 

11.  Many  of  the  English  railway  companies  make  it  a  condition 
that  certain  goods  shall  be  insured  and  declared,  or  else  they  will 
not  be  responsible  for  any  loss  which  may  occur  in  regard  to  them. 
Such  a  condition  seems  reasonable,  and  it  is  so  treated  by  the 
English  courts.  But  to  be  any  protection  to  the  companies  it 
must  assume  that  the  insurers  are  bound  to  make  good  any  loss, 
as  well  for  the  benefit  of  the  assured  as  for  that  of  the  company, 
and  that  the  company  are  not  responsible  to  the  insurer  unless 
perhaps  for  neglect  of  duty  as  a  faithful  bailee. ^^  But  to  produce 
this  result,  the  policy  should  specify  that  the  insurance  is  for  the 
benefit  of  the  company  as  well  as  the  owners.  Strictly  speaking 
there  is  no  privity,  in  case  of  insurance  against  fire,  except  as  to 
the  immediate  parties  to  the  risk,  and  to  give  any  other  party  not 
named  in  the  policy  the  benefit  of  the  insurance  is  an  equitable 
extension,  and  one  which  the  courts  have  declined  to  make  some- 
times, as  between  mortgagor  and  mortgagee."  But  where  the 
insurer  pays  the  insurance,  on  the  destruction  of  the  property,  it 
has  been  held  that  he  will  be  subrogated  to  any  claim  the  party 
insured  might  have  against  other  parties,^^  unless  that  is  excluded 
by  the  terms  of  the  policy. 

12.  The  English  statute^®  subjects  railway  companies  to  a 
penalty  for  each  day  they  use  an  engine  upon  their  roads  so 
constructed  as  not  to  consume  its  own  smoke.  But  it  has 
been  held  that  this  only  refers  to  the  construction  of  the  engine 
when  under  proper  management,  and  that  the  penalty  is  not  in- 

^*  Chapman  v.  Atlantic  &  St.  Lawrence  Railw.,  37  Maine,  92.  This  is  an 
action  for  the  loss  of  cedar  posts,  piled  upon  land  adjoining  the  railway,  by  the 
consent  of  the  owner  of  the  land,  and  set  on  fire  by  a  spark  from  the  defendants' 
engine,  and  they  were  held  not  liable  under  the  statute. 

"  Pratt  V.  Atlantic  &  St.  Lawrence  Railw.,  42  Maine,  579. 

»•  Peck  ».  North  Staffordshire  Railw.,  ElUs  B.  &  EUis,  956. 

"  Columbia  Insurance  Co.  c.  Lawrence,  10  Pet.  607,  612,  per  Storj-,  J. ; 
White  V.  Brown,  2  Cush.  412. 

"  Insurance  Co.  v.  Woodruff,  2  Dutcher,  641;  ante  pi.  8.  n.  11,  12. 

»  8  «&  9  Vic.  ch.  20,  §  114. 

•467 


456  LIABILITY  FOR  FIRES  BY   ENGINES.  CH.  XVII. 

curred  by  an  engine  emitting  smoke  instead  of  consuming  it  in 
consequence  of  bad  management  and  not  of  defective  construc- 
tion .20 

13.  The  Massachusetts  statute,  making  railway  companies  re- 
sponsible for  loss  by  fire  communicated  by  their  engines,  and 
giving  them  an  insurable  interest  in  the  property  exposed  to  fire 
in  that  mode,  was  held  to  embrace  personal  property,  although  the 
company  had  no  knowledge  or  reasonable  cause  to  believe  that 
such  property  was  situated  where  it  might  be  so  injured.^i  And 
in  the  trial  of  an  action  for  such  injury,  where  it  was  claimed  that 
no  burning  sparks  could  reach  far  enough  to  communicate  the  fire, 
it  is  competent  to  show  that  the  same  engine,  *  using  similar  fuel, 
emitted  sparks  reaching  a  greater  distance.^^  And  where  it  was 
attempted  to  show  that  similar  engines  did  not  on  other  roads 
emit  sparks  reaching  that  distance,  it  is  competent  to  prove  that 
such  engines  on  other  roads  have  emitted  sparks  which  did  com- 
municate fire  at  that  distance. ^^  In  such  an  action,  where  the 
question  of  plaintiff's  want  of  due  care  depended  upon  the  consid- 
eration of  the  dryness  of  the  season,  the  strength  and  direction  of 
the  wind,  and  the  condition  of  the  plaintiff's  buildings,  it  is  proper 
to  submit  to  the  jury,  under  general  instructions,  whether  the 
plaintitf  exercised  due  care  or  not,  and  if  this  is  done  no  exception 
lies  to  a  refusal  to  instruct  the  jury  that  "  if  the  season  was  dry, 
and  the  wind  was  from  the  railway  and  strong,  and  the  plaintiff 
knew  those  facts  and  left  a  door  of  a  shed  open  towards  the  rail- 
way, and  combustible  materials  within  the  shed,  and  that  con- 
tributed to  the  fire,  it  is  evidence  of  negligence  on  his  part,  which 
should  preclude  his  recovery."  ^^ 

14.  A  question  of  considerable  practical  importance  has  recently 
been  determined  by  the  Court  of  Exchequer  Chamber  in  England, 
which  may  be  thought  sometimes  to  have  a  bearing  upon  the  con- 
duct of  railways.  The  proposition  there  maintained  is,  that  if  a 
person  bring  on  his  own  land  any  thing,  which,  if  it  escape,  may 
prove  injurious  to  his  neighbor's  property,  such  as  a  large  body  of 
water,  he  is  liable  to  make  compensation  for  any  injury  that  may 

***  Manchester,  Sheffield,  &  Lincolnshire  Railw.  v.  Wood,  29  Law  J.  29 ;  8.  c. 
1  L.  T.  N.  S.  31 ;  8.  c.  2  Bl.  &  El.  344. 

*'  Ross  V.  B6ston  &  Worcester  Railw.,  6  Allen,  87.    The  company  should  use 
precautions  to  prevent  fire  escaping  from  their  engines  or  they  will  be  respon- 
sible for  consequences.     Bass  v.  Chicago,  Bur.  &  Quincy  Railw.  Co.  28  111.  9. 
♦  458 


§  125.  UABILITT  FOR  FIRES  BY   ENGINES.  467 

accrue  from  its  escape  out  of  his  land ;  and  it  is  no  excuse,  if  it  do 
escape  and  cause  damage  to  his  neighbor,  that  tlie  injury  was 
caused  without  any  default  or  negligence  on  his  part.'^ 

"  Fletcher  v.  Rylands,  Law  Rep.  1  Exch.  265 ;  12  Jur.  N.  S.  603 ;  8.  c.  11  id. 
714.  The  learned  judge,  in  giving  the  opinion,  said :  "  It  appears  from  the  state- 
ment in  the  case  that  the  plaintiff  was  damaged  by  his  property  being  flooded  by 
water,  which,  without  any  fault  on  his  part,  broke  out  of  a  reservoir  constructed  on 
the  defendants'  land  by  the  defendants'  orders,  and  maintained  by  the  defendants. 

"  It  appears  from  the  statement  in  the  twelfth  paragraph  of  the  case,  that  the 
coal  under  the  defendants'  land  had,  at  some  remote  period,  been  worked  out, 
but  that  this  was  unknown  at  the  time  when  the  defendants  gave  directions  to 
erect  the  reservoir ;  the  water  in  the  reservoir  would  not  have  escaped  from  the 
defendants'  land,  and  no  mischief  would  have  been  done  to  the  plaintiff  but  for 
this  latent  defect  in  the  defendants'  subsoil ;  and  it  further  appears,  from  the 
seventeenth  and  eighteenth  paragraphs,  that  the  defendants  selected  competent 
engineers  and  contractors  to  make  their  reservoir,  and  themselves  personally  con- 
tinued in  total  ignorance  of  what  we  have  called  the  latent  defect  in  the  subsoil, 
but  that  those  persons  employed  by  them,  in  the  course  of  the  work,  became 
aware  of  the  existence  of  ancient  shafts  filled  up  with  soil,  though  they  did  not 
know  or  suspect  that  they  were  shafts  communicating  with  old  workings.  It  is 
found  that  the  defendants  personally  were  free  from  all  blame,  but  that,  in  fact, 
proper  care  and  skill  was  not  used  by  the  persons  employed  by  them  to  provide 
for  the  sufficiency  of  the  reservoir  in  reference  to  these  shafts.  The  consequence 
was,  that  when  the  reservoir  was  filled,  the  water  burst  into  the  shafts  and  flowed 
down  through  them  into  the  old  workings,  and  thence  into  the  plaintiff^s  mine, 
and  there  did  the  mischief. 

"The  plaintiff,  though  free  from  all  blame  on  his  part,  must  bear  the  loss, 
unless  he  can  establish  that  it  was  the  conse(iuence  of  some  default  for  which  the 
defendants  are  responsible.  The  question  of  law,  therefore,  arises,  what  is  the 
obligation  which  the  law  casts  upon  a  person  who,  like  the  defendants,  lawfully 
brings  on  his  own  land  something  which,  though  harmless  whilst  it  remains  there, 
will  naturally  do  mischief  if  it  escape  out  of  his  land  ?  It  is  agreed  on  all  hands, 
that  he  must  take  care  to  keep  in  that  which  he  has  brought  on  the  land  and 
keeps  there,  in  order  that  it  may  not  escape  and  damage  his  neighbors ;  but  the 
question  arises,  whether  the  duty  which  the  law  casts  upon  him  under  such  cir- 
cumstances is  an  absolute  duty  to  keep  it  in  at  his  peril,  or  is,  as  the  majority  of 
the  CoUrt  of  Exchequer  have  thought,  merely  a  duty  to  take  all  reasonable  and 
prudent  precautions  in  order  to  keep  it  in,  and  no  more.  If  the  first  be  the  law, 
the  person  who  has  brought  on  his  land  and  kept  there  something  dangerous,  and 
failed  to  keep  it  in,  is  responsible  for  all  the  natural  consequences  of  its  escape. 
If  the  second  be  the  limit  of  his  duty,  he  would  not  be  answerable  except  on 
proof  of  negligence,  and  consequently  would  not  be  answerable  for  escape 
arising  from  any  latent  defect  which  ordinarj'  prudence  and  skill  could  not 
detect. 

♦'  Supposing  the  second  to  be  the  correct  view  of  the  law,  a  further  question 
arises  subsidiary  to  the  first,  namely,  whether  the  defendants  are  not  so  far  iden- 
tified with  the  contractors,  whom  they  employed,  as  to  be  responsible  for  the 


468  LIABILITY  FOR  FIRES  BY  ENGINES.  CH.  XVH. 

*  15.  Tlie  carefully  considered  judgment  of  the  full  court  of 
Exchequer  Chamber  by  Blackburn,  J.,  contains  so  many  points 

consequences  of  their  want  of  care  and  skill  in  making  the  reservoir  in  fact 
insufficient  with  reference  to  the  old  shails,  of  the  existence  of  which  they  were 
aware,  though  they  had  not  ascertained  where  the  shafts  led  to. 

"  We  think  that  the  rule  of  law  is,  that  the  person  who,  for  his  own  purposes, 
brings  on  his  land  and  collects  and  keeps  there  any  thing  likely  to  do  mischief  if 
it  escapes,  must  keep  it  at  his  peril,  and  that  if  he  does  not  do  so,  he  is  prima 
facie  answerable  for  all  the  damage  which  is  the  natural  consequence  of  its 
escape.  He  can  excuse  himself  by  showing  that  the  escape  was  the  consequence 
of  vis  major,  or  the  act  of  God ;  but,  as  nothing  of  the  sort  exists  here,  it  is  un- 
necessary to  inquire  what  excuse  would  be  sufficient.  The  general  rule,  as  above 
stated,  seems  on  principle  just.  The  person,  whose  grass  or  com  is  eaten  down 
by  the  escaping  cattle  of  his  neighbor,  or  whose  mine  is  flooded  by  the  water 
from  his  neighbor's  reservoir,  or  whose  cellar  is  invaded  by  the  filth  of  his  neigh- 
bor's privy,  or  whose  habitation  is  made  unhealthy  by  the  fumes  and  noisome 
vapors  of  his  neighbor's  alkali  works,  is  damnified  without  any  fault  of  his  own ; 
and  it  seems  but  reasonable  and  just  that  the  neighbor,  who  has  brought  some- 
thing on  his  own  property  which  was  not  naturally  there,  harmless  to  others  so 
long  as  it  is  confined  to  his  own  property,  but  which  he  knows  to  be  mischievous 
if  it  gets  on  his  neighbor's,  should  be  obliged  to  make  good  the  damage  which 
ensues  if  he  does  not  succeed  in  confining  it  to  his  own  property.  But  for  his 
act  in  bringing  it  there  no  mischief  could  have  accrued,  and  it  seems  but  just 
that  he  should  at  his  peril  keep  it  there,  so  that  no  mischief  may  accrue,  or 
answer  for  the  natural  and  anticipated  consequences.  And,  upon  authority,  this 
we  think  is  established  to  be  the  law,  whether  the  things  so  brought  be  beasts, 
or  water,  or  filth,  or  stenches. 

"  The  case  that  has  most  commonly  occurred,  and  which  is  most  frequently  to 
be  found  in  the  books,  is  as  to  the  obligation  of  the  owner  of  cattle  which  he  has 
brought  on  his  land,  to  prevent  their  escaping  and  doing  mischief.  The  law  as 
to  them  seems  to  be  perfectly  settled  from  early  times.  The  owner  must  keep 
them  in  at  his  peril,  or  he  will  be  answerable  for  the  natural  consequences  of  their 
escape ;  that  is,  with  regard  to  tame  beasts,  in  the  grass  they  eat  and  trample 
upon,  though  not  for  any  injury  to  the  person  of  others,  for  our  ancestors  have 
settled,  that  it  is  not  the  general  nature  of  horses  to  kick  or  bulls  to  gore ;  but, 
if  the  owner  knows  that  the  beast  has  a  vicious  propensity  to  attack  man,  he  will 
be  answerable  for  that  too. 

"  As  early  as  the  Year  Book,  20  Edw.  4,  11,  pi.  10,  Brian,  C.  J.,  lays  down 
the  doctrine  in  terms  verj*  much  resembling  those  used  by  Lord  Ilolt,  in  Tenant 
r.  Goldwin,  which  will  be  referred  to  afterwards.  It  was  trespass  with  cattle. 
Plea,  that  the  defendant's  land  adjoined  a  place  where  the  defendant  had  com- 
mon ;  that  the  cattle  strayed  from  the  common,  and  the  defendant  drove  them 
back  as  soon  as  he  could.  It  was  held  a  bad  plea.  Brian,  C.  J.,  says :  '  It  be- 
hoves him  to  use  his  common  so  that  he  shall  do  no  hurt  to  another  man ;  and  if 
the  land  on  which  he  has  common  be  not  inclosed,  it  behoves  him  to  keep  the 
beast  in  the  common,  and  out  of  the  land  of  any  other.'  He  adds,  when  it 
waa  proposed  to  amend,  by  pleading  that  they  were  driven  out  of  the  .com- 
»469 


§  125.  LIABILITY  FOR   HRES   BY  ENGINES.  459 

*  bearing  upon  questions  which  are  liable  to  arise  in  the  course  of 
tlie  construction  and  operation  of  railways,  that  we  have  deemed 

mon  by  dogs,  that  although  that  might  give  a  right  of  action  against  the 
master  of  the  dogs,  it  was  no  defence  to  the  action  of  trespass  by  the  per- 
son on  whose^land  the  cattle  went.  In  the  recent  case  of  Cox  r.  Burbridge, 
WiUianu,  J.,  says :  •  I  apprehend  the  general  rule  of  law  to  be  perfectly 
plain.  If  I  am  the  owner  of  an  animal,  in  which,  by  law,  the  right  of 
property  can  exist,  I  am  bound  to  take  care  that  it  does  not  stray  into  the 
land  of  my  neighbor ;  and  I  am  liable  for  any  trespass  it  may  commit,  and  for 
the  ordinarj-  consequences  of  the  trespass.  Whether  or  not  the  escape  of  the 
animal  is  due  to  my  negligence  is  altogether  immaterial.'  So  in  the  case  of  May 
r.  Burdett  (9  Q.  B.  101 ;  10  Jur.  692),  the  court,  after  an  elaborate  examination 
of  the  old  precedents  and  authorities,  came  to  the  conclusion,  that  "  a  person 
keeping  a  mischievous  animal,  with  knowledge  of  its  propensities,  is  bound  to 
keep  it  secure  at  his  peril."  And  Lord  Hale  (1  Hale's  P.  C.  430)  states,  that 
where  one  keeps  a  beast,  knowing  its  nature  is  such  that  the  natural  consequence 
of  its  being  loose  is,  that  it  will  harm  men,  the  owner  must  at  his  peril  keep  him 
up  safe  from  doing  hurt ;  for  though  he  use  his  diligence  to  keep  it  up,  if  it 
escape  and  do  harm,  the  owner  is  liable  to  answer  damages ;  though,  as  he  pro- 
ceeds to  show,  he  will  not  be  liable  criminally,  without  proof  of  want  of  care. 
In  these  latter  authorities,  the  point  under  consideration  was  damage  to  the 
person,  and  what  was  decided  was,  that  where  it  was  known  that  hurt  to  the 
person  was  the  natural  consequence  of  the  animal  being  loose,  the  owner  should 
be  responsible  in  damages  for  such  hurt ;  though  where  it  was  not  known  to  be 
so  the  owner  was  not  responsible  for  such  damages ;  but  where  the  damage  is, 
like  eating  grass,  or  other  ordinary  ingredients  in  damage  feasant,  the  natural 
consequence  of  the  escape,  the  rule  as  to  keeping  in  the  animal  is  the  same.  In 
Com.  Dig.  '  Droit,'  M.  2,  it  is  said :  'That  if  the  owner  of  200  acres,  in  a  com- 
mon moor,  enfeoffs  B.  of  60  acres,  B.  ought  to  inclose,  at  his  peril,  to  prevent 
damage  by  his  cattle  to  the  other  160  acres.  For  if  his  cattle  escape  thither, 
they  may  be  distrained  damage  feasant.  So,  the  owner  of  the  150  acres  ought 
to  prevent  his  cattle  from  doing  damage  to  the  60  acres  at  his  peril.'  The 
authority  cited  is  Dy.  872  6.,  where  the  decision  was,  that  the  catth*  might  be 
distrained ;  the  inference  from  that  decision,  that  the  owner  was  bound  to  keep 
in  his  cattle  at  his  peril,  is,  we  think,  legitimate  ;  and  we  have  the  high  authority 
of  Coniyns  for  saying  that  such  is  the  law.  In  the  note  to  F,  N.  B.  128,  which 
is  attributed  to  Lord  Hale,  it  is  said :  ♦  If  A.  &  B.  have  lands  adjoining,  where 
there  is  no  inclosure,  the  one  shall  have  trespass  against  the  other  on  an  escape 
of  their  beasts  respectively  (Dy.  372,  Rastal  Ent.  621,  20  Edw.  4,  10),  although 
wild  dogs,  &c.  drive  the  cattle  of  the  one  into  the  lands  of  the  other.'  No  case 
is  known  to  us  on  which,  in  replevin,  it  has  ever  been  attempted  to  plead  in  bar 
to  an  avowry  for  distress  damage  feasant,  that  the  cattle  had  escaped  without  any 
negligence  on  the  part  of  the  plaintiff;  and  surely,  if  that  would  have  been 
a  good  plea  in  bar,  the  facts  must  often  have  been  such  as  would  have  supported 
it.  The  authorities,  and  the  absence  of  any  authority  to  the  contrar}*,  justify 
Williams,  J.,  in  saying,  as  he  does,  in  Cox  p.  Bnrbidge,  that  the  law  is  clear, 
that  in  actions  for  damage  occasioned  by  animals  that  have  not  been  kept  in 

•460 


460  LIABILITY   FOB  FIRES  BY   ENGIKES.  CH.  XVII. 

*  it  might  afford  valuable  matter  for  the  profession.^  The  opinion 
will  also  point  out  very  clearly  for  what  matters  railway  *  companies 

by  their  owners,  it  is  quite  immaterial  whether  the  escape  is  by  negligence  or 
not. 

"As  has  been  already  said,  there  does  not  appear  to  be  any  difference  in 
principle  between  the  extent  of  the  duty  cast  on  him  who  brings  cattle  on  his 
land  to  keep  them  in,  and  the  extent  of  the  duty  imposed  on  him  who  brings 
on  his  land  water,  filth,  or  stenches,  or  any  other  thing  which  will,  if  it  escape, 
naturally  do  damage,  to  prevent  their  escaping  and  injuring  his  neighbor ;  and 
the  case  of  Tenant  v.  Goldwin  is  an  express  authority  that  the  duty  is  the  same, 
and  is  to  keep  them  in  at  his  peril. 

"  As  Martin,  B.,  in  his  judgment  below,  appears  not  to  have  understood  the 
case  in  the  same  manner  as  we  do,  it  is  proper  to  examine  it  in  some  detail.  It 
was  a  motion  in  arrest  of  judgment  after  judgment  by  default,  and  therefore  all 
that  was  well  pleaded  in  the  declaration  was  admitted  to  be  true.  The  decla^ 
ration  is  set  out  at  full  length  in  the  report  in  6  Mod.  311.  It  alleged  that  the 
plaintiff  had  a  cellar  which  lay  contiguous  to  a  messuage  of  the  defendant,  '  and 
used  (solebat)  to  be  separated,  and  fenced  from  a  privy  house  of  office,  parcel  of 
the  said  messuage  of  the  defendant,  by  a  thick  and  close  wall,  which  belongs 
to  the  said  messuage  of  the  defendant,  and  by  the  defendant,  of  right,  ought  to 
have  been  repaired  (jure  debuit  reparari),^  yet  he  did  not  repair  it,  and,  for 
want  of  repair,  filth  flowed  into  the  plaintiff's  cellar. 

'*  The  case  is  reported  by  Salkdd,  who  argued  it,  in  6  Mod.,  and  by  Lord 
Baymond,  whose  report  is  the  fullest.  The  objection  taken  was,  that  there  was 
nothing  to  show  that  the  defendant  was  under  any  obligation  to  repair  the  wall, — 
that,  it  was  said,  not  being  a  charge  of  common  right,  and  the  allegation,  that 
the  wall  de  Jure  debuit  reparari  by  the  defendant,  being  an  inference  of  law 
which  did  not  arise  from  the  facts  alleged.  Salkdd  argued,  that  this  general 
mode  of  stating  the  right  was  sufficient  in  a  declaration,  and  also  that  the  duty 
alleged  did  of  common  right  restilt  from  the  facts  stated.  It  is  not  now  material 
to  inquire  whether  he  was  or  was  not  right  on  the  pleading  point.  All  three 
reports  concur  in  saying  that  Lord  Holt,  during  the  argument,  intimated  an 
opinion  against  him  on  that,  but  that  after  consideration  the  court  gave  judgment 
for  him  on  the  second  ground. 

"  In  the  report  6  Mod.,  it  was  stated,  '  And  at  another  day,  per  totam  curiam, 
the  declaration  is  good ;  for  there  is  a  sufficient  cause  of  action  appearing  on  it, 
but  not  upon  the  word  *'  solebat.''''  If  the  defendant  has  a  house  of  office  in- 
closed with  a  wall  which  is  his,  he  is  of  common  right  bound  to  use  it  so  as  not 
to  annoy  another.  .  .  .  The  reason  here  is,  that  one  must  use  his  own,  so  as 
thereby  not  to  hurt  another ;  and,  as  of  common  right  one  is  bound  to  keep 
his  cattle  from  trespassing  on  his  neighbor,  so  he  is  bound  to  use  any  thing, 
that  is  his,  so  as  not  to  hurt  another  by  such  user.  .  .  .  Suppose  one  sells  a 
piece  of  pasture  lying  open  to  another  piece  of  pasture  which  the  vendor  has, 
the  vendee  is  bound  to  keep  his  cattle  from  running  into  the  vendor's  piece ;  so 
of  dung  or  any  thing  else.'  There  is  an  evident  allusion  to  the  same  case 
in  Dyer,  as  is  referred  to  in  Com.  Dig.,  '  Droit '  (M.  2).  Lord  Baymond,  in  his 
report  (2  Ld.  Raym.  1089),  says,  "■  The  last  day  of  term,  HoU,  C.  J.,  delivered 
•  461,  462 


§  125.  LIABILITY   FOR  FIRES  BY  ENGINES.  461 

and  others  are  or  are  not  to  be  held  responsible,  if  there  is  no 
actual  negligence  on  their  part. 

the  opinion  of  the  court  that  the  declaration  was  sufficient.  He  said  that  upon 
the  face  of  the  declaration  there  appeared  a  sufficient  cause  of  action  to  en- 
title  the  plaintiff  to  have  his  judgment ;  that  they  did  not  go  upon  the  solehat  or 
the^ure  debuit  reparari,  as  if  it  were  enough  to  say  that  tlie  plaintiff  had  a  house 
and  the  defendant  had  a  wall,  and  he  ought  to  repair  the  wall ;  but  if  the  defend- 
ant has  a  bouse  of  office,  and  the  wall  which  separates  the  house  of  office  from 
the  plaintiff^s  house  is  all  the  defendant's,  he  is  of  common  right  bound  to 
repair  it.  .  .  .  The  reason  of  this  case  is  upon  this  account,  that  every  one  must 
so  use  *  his  own  as  not  to  do  damage  to  another ;  and  as  every  man  is  bound  so 
to  look  to  his  cattle  as  to  keep  them  out  of  his  neighbor's  ground,  so  that  he  may 
receive  no  damage ;  so  he  must  keep  in  the  filth  of  his  house  of  office,  so  that 
it  may  not  flow  in  upon  and  damnify  his  neighbor.  .  .  .  So  if  a  man  has  two 
pieces  of  pasture  which  lie  open  to  one  another,  and  sells  one  piece,  the  vendee 
must  keep  in  his  cattle,  so  as  they  shall  not  trespass  upon  the  vendor.  So  a  man 
shall  not  lay  bis  dung  so  high  as  to  damage  his  neighbor ;  and  the  reason  of  these 
cases  is,  because  every  man  must  so  use  his  own  as  not  to  damnify  another.? 
Salkeld,  who  bad  been  counsel  in  the  case,  reports  the  judgment  much  more  con- 
cisely, but  to  the  same  effect.  He  says,  '  The  reason  he  gave  for  his  judgment 
was  because  it  was  the  defendant's  wall  and  the  defendant's  filth ;  and  he  was 
bound  of  common  right  to  keep  bis  wall  so  as  bis  filth  might  not  damnify  his 
neighbor;  and  that  it  was  a  trespass  on  his  neighbor,  as  if  his  beast  should 
escape,  or  one  should  make  a  great  heap  on  the  border  of  his  ground,  and  it 
should  tumble  and  roll  down  upon  his  neighbor's,  ...  be  must  repair  the  wall 
of  his  house  of  office  ;  for  be  whose  dirt  it  is  must  keep  it  that  it  may  not  tres- 
pass.' It  is  worth  noticing  how  completely  the  reason  of  Lord  Holt  corresponds 
with  that  of  Brian,  C.  J.,  in  the  cases  already  cited  in  20  Edw.  4.  Martin,  B., 
in  the  court  below,  says,  that  he  thinks  this  was  a  case  without  difficulty,  because 
the  defendant  had,  by  letting  judgment  go  by  default,  admitted  his  liability  to 
repair  the  wall,  and  that  be  cannot  see  bow  it  is  an  authority  for  any  case  in 
which  no  such  liability  is  admitted.  But  a  perusal  of  the  report  will  show  that 
it  was  because  Lord  Holt  and  his  colleagues  thought  (no  matter  for  this  purpose 
whether  rightly  or  wrongly)  that  the  liability  was  not  admitted  that  they  took  so 
much  trouble  to  consider  what  liability  the  law  would  raise  from  the  admitted 
facts ;  and  it  does,  therefore,  seem  to  us  to  be  a  very  weighty  authority  in  sup- 
port of  the  position,  that  he  who  brings  and  keeps  any  thing,  no  matter  whether 
beasts,  or  filth,  or  clean  water,  or  a  heap  of  earth,  or  dung,  on  his  premises, 
must  at  his  peril  prevent  it  from  getting  on  his  neighbor's,  or  make  good  all  the 
damage  which  is  the  natural  consequence  of  its  doing  so.  No  case  has  been 
found  in  which  the  question  as  to  the  liability  for  noxious  vapors  escaping  from 
a  man's  work  by  inevitable  accident  has  been  discussed,  but  the  following  case 
will  illustrate  it.  Some  years  ago  several  actions  were  brought  against  the 
occupiers  of  some  alkali  works  at  Liverpool,  for  the  damage  alleged  to  be  caused 
by  the  chlorine  fumes  of  their  works.  The  defendants  proved  that  they,  at  great 
expense,  erected  contrivances  by  which  the  fumes  of  chlorine  were  condensed, 
and  sold  as  muriatic  acid ;  and  they  called  a  great  body  of  scientific  evidence  to 

•463 


462  LIABILITY   FOB  FIRES  BY  ENGINES.  CH.  XVII. 

16.  A  question  of  considerable  practical  importance  has  been 
somewhat  discussed,  in  regard  to  the  extent  of  the  responsibility 

prove  that  this  apparatus  was  so  perfect  that  no  fumes  possibly  could  escape 
from  the  defendant's  chimneys.     On  this  evidence,  it  was  pressed  upon  the  jury 
that  the  plaintifiTs  damage  must  have  been  due  to  some  of  the  numerous  other 
chimneys  in  the  neighborhood ;  the  jurj-,  however,  being  satisfied  that  the  mis- 
chief was  occasioned  by  chlorine,  drew  the  conclusion  that  it  had  escaped  from 
the  defendants'  works  somehow,  and  in  each  case  found  for  the  plaintiflF.     No 
attempt  was  made  to  disturb  these  verdicts,  on  the  ground  that  the  defendants 
had  taken  every  precaution  which  prudence  or  skill  could  suggest  to  keep  those 
fumes  in,  and  that  they  could  not  be  responsible  unless  negligence  were  shown  ; 
yet  if  the  *  law  be  as  laid  down  by  the  majority  of  the  Court  of  Exchequer,  it 
would  have  been  a  very  obvious  defence.     If  it  had  been  raised,  the  answer 
would  probably  have  been  that  the  uniform  course  of  pleading  in  actions  on  such 
nuisances  is  to  say  that  the  defendant  caused  the  noisome  vapors  to  arise  on  his 
premises,  and  suffered  them  to  come  on  the  plaintiff's,  without  stating  there  was 
any  want  of  care  or  skill  in  the  defendant ;  and  that  the  case  of  Tenant  v.  Gold- 
win  showed  that  this  was  founded  on  the  general  rule  of  law,  that  he  whose  stuff 
it  is  must  keep  it  that  it  may  not  trespass.     There  is  no  difference  in  this  respect 
between  chlorine  and  water;  both  will,  if  they  escape,  do  damage,  —  the  one  by 
scorching  and  the  other  by  drowning ;  and  he  who  brings  them  there,  must  at  his 
peril  see  that  they  do  not  escape  and  do  that  mischief.     What  is  said  by  Gihbs, 
C.  J.,  in  Sutton  v.  Clarke,  though  not  necessary  for  the  decision  of  the  case, 
shows  that  that  very  learned  judge  took  the  same  view  of  the  law  that  was  taken 
by  Lord  Holt.     But  it  was  further  said  by  MaHin,  B.,  that  when  damage  is  done 
to  personal  property,  or  even  to  the  person,  by  collision,  either  upon  land  or  at 
sea,  there  must  be  negligence  in  the  party  doing  the  damage,  to  render  him 
legally  responsible,  and  this  is  no  doubt  true ;  and,  as  was  pointed  out  by  Mr. 
Mellish  during  his  argument  before  us,  this  is  not  confined  to  cases  of  collision, 
for  there  are  many  cases  in  which  proof  of  negligence  is  essential ;  as,  for 
instance,  where  an  unruly  horse  gets  on  the  footpath  of  a  public  street,  and  kicks 
a  passenger  (Hammack  v.  White)  ;  or  where  a  person  in  a  dock  is  struck  by  the 
falling  of  a  bale  of  cotton  which  the  defendants'  servants  are  lowering  (Scott  v. 
The  London  Dock  Company),  and  many  other  similar  cases  may  be  found. 
But  we  think  these  cases  distinguishable  from  the  present.     Traffic  on  the  high- 
ways, whether  by  land  or  sea,  cannot  be  conducted  without  exposing  those  whose 
persons  or  property  are  near  it  to  some  inevitable  risk ;  and  that  being  so,  those 
who  go  on  the  highway,  or  have  their  property  adjacent  to  it,  may  be  held  to  do 
so  subject  to  their  taking  upon  themselves  the  risk  of  suffering  from  that  inevi- 
table danger ;  and  persons  who,  by  the  license  of  the  owner,  pass  near  to  ware- 
houses where  goods  are  being  raised  or  lowered,  certainly  do  so  subject  to  the 
inevitable  risk  of  accident.     In  neither  case,  therefore,  can  they  recover  without 
proof  of  want  of  care  or  skill  occasioning  the  accident ;  and  it  is  believed,  that 
all  the  cases  in  which  inevitable  accident  has  been  held  an  excuse  for  what  primd 
facie  was  a  trespass,  can  be  explained  on  the  same  p;rinciple ;  viz.,  that  the 
circumstances  were  such  as  to  show  that  the  plaintiff  had  taken  the  risk  upon 
himself.   But  there  is  no  ground  for  saying  that  the  plaintiff  here  took  upon  him- 
♦464 


§  125.  LIABILITY   FOR  FIRES   BY  ENGINES.  463 

of  railway  companies,  or  others,  for  fires  communicated  by  the 
accidental  extension  of  other  fires,  for  which  the  party,  through 
negligence  or  otherwise,  is  confessedly  responsible.  Upon  prin- 
ciple, it  would  seem,  that  one  who  is  the  unintentional,  but  careless, 
cause  of  setting  a  fire,  should  not  be  held  responsible  for  damage 
beyond  the  immediate,  direct,  and  natural  consequences  of  the 
original  fire.  There  are  numerous  disastrous  consequences  re- 
sulting sometimes  from  setting  fires,  but  which  are  so  rare  as  not 
to  be  fairly  reckoned  in  the  category  of  natural  or  ordinary  results, 
by  way  of  cause  and  effect.  A  fireman  may  be  fatally  injured  and 
a  family  beggared,  or  a  horse  naay  be  frightened,  and  the  fathers 
of  more  than  one  dependent  family  killed,  or  crippled  for  life,  in 
consequence.  But  no  actions  have  ever  been  instituted  for  any 
such  remote  damages.  And  although  some  of  the  cases  bear  a 
considerably  close  analogy  to  these  in  principle,  it  must,  we  think, 
be  treated  as  the  prevailing  rule  of  law  that  such  remote  and  con- 
sequential damages  will  not  form  the  ground  of  an  action  in  the 
courts.  Tims  in  Ryan  v.  New  York  Central  Railway,^  it  was  held 
the  defendants  were  not  responsible  for  the  destruction  of  the 
plaintiff's  house,  distant  one  hundred  and  thirty  feet  from  their 
shed,  which  had  been  set  on  fire  through  their  own  negligent  con- 
duct in  regard  to  one  of  their  engines,  or  by  reason  of  some  defect 
in  the  engine,  from  which  the  fire  had  communicated  to  the 
plaintiff's  house. 

self  any  risk  arising  from  the  uses  to  which  the  defendants  should  choose  to 
apply  their  land.  He  neither  knew  what  there  might  be,  nor  could  he  in  any 
way  control  the  defendants  or  hinder  their  building  what  reservoirs  they  liked, 
and  storing  up  in  them  what  water  they  pleased,  so  long  as  the  defendants  suc- 
ceeded in  preventing  the  water  which  they  there  brought  from  interfering  with 
the  plaintiflTs  property. 

"  The  view  which  we  take  of  the  first  point  renders  it  unnecessarj'  to  consider 
whether  the  defendants  would  or  would  not  be  responsible  for  the  want  of  care 
and  skill  in  the  persons  employed  by  them,  under  the  circumstances  stated  in 
this  case. 

"We  are  of  opinion  that  the  plaintiff  is  entitled  to  recover;  but  as  we  have 
not  heard  any  argument  as  to  the  amount,  we  are  not  able  to  give  judgment  for 
what  damages.  The  parties,  probably,  will  empower  their  counsel  to  agree  on 
the  amount  of  damages ;  should  they  differ  on  the  principle,  the  case  may  be 
mentioned  again.     Judgment  for  the  plaintiff." 

«  86  N.  Y.  210.  But  see  Trask  r.  Hartford  &  New  H.  Railw.,  2  AUen, 
331. 


464 


INJURIES  TO   DOMESTIC   ANIMALS. 


CH.  XVIII. 


♦CHAPTER  XVIII. 


INJURIES  TO  DOMESTIC   ANIMALS. 


1.  Company  not  liable  unless  bound  to  keep 

the  animals  off  the  track. 

2.  Some  cases  go  even  Jiirther,  in  favor  of 

the  company. 

3.  Not  liable  where  the  animals  toere  vnvng- 

fuUy  abroad. 

4.  Not  liable  for  injury  to  animals,  on  land 

where  company  not  bound  to  fence. 

5.  Where  company  bound  to  fence  are  prirn^ 

facie  liable  for  injury  to  cattle. 

6.  But  if  owner  is  in  fault,  company  not 

liable. 

7.  In  such  case  company  only  liable  for 

gross  neglect  or  wilful  injury. 

8.  Owner  cannot  recover,  if  he  suffer  his  cat- 

tle to  go  at  large  near  a  railway. 

9.  Company  not  liable  in  such  case,  unless 

they  might  have  avoided  the  injury. 

10.  Where  company  are  required  to  keep 

gates  closed,  are  liable  to  any  party  in- 
jured by  omission. 

11.  Opinion  of  Gibson,  Justice,  on  this  sub- 

ject. 

12.  17.  Not  liable  for  consequences  of  the 

proper  use  of  their  engines. 

13.  Questions  of  negligence  ordinarily  to  be 

determined  by  jury. 

14.  But  this  is  true  only  where  the  testimony 

leaves  the  question  doubtful. 


16.  Actions  may  be  maintained  somdimes,  for 
remote  consequences  of  negligence. 

16-18.  Especially  where  a  statutory  duty  is 
neglected  by  company. 

19.  The  question  of  negligence  is  one  for  the 

Jury. 

20.  One  who  suffers  an  animal  to  go  at  large 

can  only  recover  for  gross  neglect. 

21.  Testimony  of  experts  receivable  as    to 

management  of  engines. 

22.  One  who  suffers  cattle  to  go  at  large  must 

take  the  risk, 

23.  The  company  owe  a  primary  duty  to  pas- 

sengers, Sfc. 

24.  In  Maryland  company  liable  unless  for 

unavoidable  accident. 

25.  In  Indiana  common-law  rule  prevails. 

26.  In  Missouri,  modified  by  statute. 

27.  In  California  cattle  may  lawfully  be  suf- 

fered to  go  at  large. 

28.  29.  Abstract  of  late  cases  in  Illinois. 

30.  The  weight  of  evidence  and  of  presump- 

tion. 

31.  Compajiy  not    liable    except  for  negli- 

gence. 
82.    Company  must  use  all  statutory  and  other 

precautions. 
33.   Not  competent  to  prove  negligence  of  the 

same  kind  on  other  occasions. 


§  126.  1.  The  decisions  upon  the  subject  of  injuries  to  domestic 
animals  by  railways  are  very  numerous,  but  may  be  reduced  to  a 
comparatively  few  principles.  Where  the  owner  of  the  animals  is 
unable  to  show  that  as  against  the  railway  they  were  properly 
upon  the  track,  or,  in  other  words,  that  it  was  through  the  fault  of 
the  company  that  they  were  enabled  to  come  upon  *  the  road,  the 
company  are  not  in  general  liable,  unless,  after  they  discovered 
the  animals,  they  might,  by  the  exercise  of  proper  care  and  pru- 
dence have  prevented  the  injury. 
*  466,  466 


§  126.  INJURIES  TO  DOMESTIC  ANIMALS.  465 

The  fact  of  killing  an  animal  of  value  by  the  company's  engines, 
\a  not  privia  facie  evidence  of  negligence  on  their  part.^  A  dis- 
tinction is  here  taken  by  the  court  between  injuries  to  permanent 
property  situated  along  the  line  of  the  railway,  as  injury  to  build- 
ings by  fires  communicated  by  the  company's  engines,  and  damage 
to  cattle  which  are  constantly  changing  place,  there  being  more 
evidence  of  fault  on  the  part  of  the  company  from  the  mere  occur- 
rence of  the  injury  in  the  former  than  in  the  latter  case.* 

2.  Most  of  the  better  considered  cases  certainly  adopt  this  view 
of  the  subject,  and  some  perhaps  go  even  further  in  favor  of 
exempting  the  company  from  liability,  where  they  were  not  origi- 
nally in  fault,  and  the  animals  were  exposed  to  the  injury  through 
the  fault  of  the  owner,  mediately  or  immediately. 

3.  For  instance,  if  the  animal  escape  into  the  highway,  and 
thus  get  upon  the  track  of  the  railway  where  it  intersects  with 
the  highway,  and  is  killed,  the  company  are  not  liable.^  And  if 
the  animals  are  trespassing  upon  a  field,  and  stray  from  the  field, 
upon  the  track  of  the  railway,  through  defect  of  fences,  which  the 

•  company  are  bound  to  maintain,  as  against  the  owner  of  the  field, 
and  are  killed,  the  company  are  not  liable,  either  at  common  law 
or  under  the  English  statute,*  or  upon  the  ground  that  the 
defendant  exercised  a  dangerous  trade.  The  obligation  to  make 
and  maintain  fences,  both  at  common  law  and  under  the  statute, 
applies  only  as  against  the  owners  or  opcupiers  of  the  adjoining 
close.^ 

»  Scott  V.  W.  &  R.  Railw.,  4  Jones  Law,  432. 

'  See  note  1,  and  also  Ind.  &  Cincin.  Railw.  r.  Caldwell,  9  Ind.  397. 

'  Towns  V.  Cheshire  Railw.,  1  Foster,  363;  Sharrod  v.  London  &  N.  W. 
Railw.,  4  Exch.  680.  Halloran  r.  New  Y.  «fe  Harlem  Railw.,  2  E.  D.  Smith, 
257.  In  Maryland  it  was  held  that  a  statute  for  the  protection  of  animals  and 
stock  did  not  include  negro  slaves.   Scaggs  v.  Bait.  &Wa8h.  Railw.,  10  Md.  268. 

*  8  &  9  Vict.  ch.  20,  §  68. 

»  Ricketts  r.  The  East  and  West  India  Docks  and  Birm.  J.  Railw.,  12  C.  B. 
160 ;  s.  c.  12  Eng.  L.  &  Eq.  620.  The  same  point  is  ruled  in  the  following  cases. 
Jackson  r.  Rut.  &  Bur.  Railw.,  25  Vt.  150.  See  also  cases  referred  to  in 
§§  166,  167.  And  it  was  held,  Man.  Sh.  &  Lincolnshire  Railw.  r.  Wallis,  14 
C.  B.  248;  8.  c.  25  Eng.  L.  &  Eq.  373,  that  a  railway  are  not  bound  to  fence 
against  cattle  straying  upon  a  highway  running  along  the  railway,  and  tliat  they 
are  not  liable  for  an  injury  sustained  by  cattle  in  getting  from  such  highway  upon 
the  railway,  through  a  defect  of  the  fences  maintained  by  the  company ;  although 
the  cattle  strayed  upon  the  highway  without  any  fault  of  the  owner.  Brooks  v. 
N.  Y.  &  Erie  Railw.,  13  Barb.  594.     But  in  the  Midland  Railw.  r.  Daykin, 

30 


466  INJURIES   TO   DOMESTIC   ANIMALS.  CH.  XVIII. 

.  *  4.  So  where  the  statute  requires  railways  to  fence  their  road, 
where  the  same  passes  through  "  enclosed  or  improved  lands,"  if 
injury  happen  to  another's  cattle  through  want  of  fences,  upon 
common  or  unenclosed  land,  it  is  not  legally  imputable  to  the 
negligence  of  the  company.'' 

5.  But  if  the  railway  are  bound  to  maintain  fences,  as  against 
the  owner  of  the  cattle,  and  they  come  upon  the  road  through 
defect  of  such  fences,  and  are  injured,  the  company  are,  in  general, 
liable  without  further  proof  of  negligence." 

*  6.  But  where  the  statute  imposes  the  duty  of  building  fence 
upon  the  railway,  they  may  lawfully  stipulate  with  the  land-owners 
to  maintain  it,  and  if  such  land-owner  suffer  his  cattle  to  be  where 
they  may  come  upon  the  railway  without  building  the  fence,  he 

17  C.  B.  126 ;  s.  c.  33  Eng.  L.  &  Eq.  193,  it  was  held,  that  where  a  colt 
strayed  from  a  field,  upon  a  public  road,  abutting  upon  which  was  a  yard  not 
fenced  from  a  railway,  the  gate  of  which  was,  through  the  neglect  of  the  com- 
pany's servants,  left  open,  and,  while  the  colt  was  being  driven  back  to  the 
field  by  the  servants  of  the  owner,  it  escaped  into  the  yard,  and  thence  upon 
the  railway,  where  it  was  killed  by  a  passing  train,  the  company  were  lia-  . 
ble.  Jervis,  Ch.  J.,  says  :  "  I  can  see  no  room  to  doubt  that  that  was  a  lawful 
use  of  the  highway."  But  in  Ellis  v.  London  &  Southwestern  Railw.,  2  H.  &  N. 
424,  where  a  railway  company  constructed  their  road  across  a  public  footway,  in 
such  a  manner  that  no  security  against  injury  to  passers  on  the  way  was  afforded 
within  the  provisions  of  the  English  statute,  8  &  9  Vict.  ch.  20,  §§  46,  61,  68, 
by  means  of  a  bridge  or  stile,  but  the  company  erected  high  gates  which 
obstructed  the  footway  and  gave  the  key  to  plaintiff's  servant,  which  had  been 
lost  and  the  gates  left  open,  without  notice  to  the  railway  company,  whereby 
the  plaintiff's  colts  escaped  from  his  lands  adjoining,  and  came  upon  the  railway 
and  were  killed  by  a  passing  train,  the  jury  having  found  that  the  plaintiff,  by 
his  own  negligence  and  that  of  his  servants  had  contributed  to  the  accident,  it 
was  held  he  could  not  reeover,  notwithstanding  the  omission  of  duty  by  the  com- 
pany. 

*  Perkins  v.  Eastern  Railw.  and  the  Boston  &  M.  Railw.,  29  Maine,  307. 
And  if  by  the  common  usage  cattle  have  the  right  to  run  upon  unenclosed  land, 
the  owner  incurs  the  risk  of  all  accidents.  Knight  v.  Abert,  6  Penn.  St.  472 ;  Phil. 
&  Germ.  Railw.  v.  Wilt,  4  Whart.  143. 

^  Suydam  v.  Moore,  8  Barb.  358 ;  Waldron  v.  Rensselaer  &  Sar.  Railw.,  8 
Barb.  390;  Horn  v.  Atlantic  &  St.  Lawrence  Railw.,  35  N.  H.  169;  s.  c.  36 
id.  440;  Smith  r.  Eastern  Railw.,  35  N.  H.  356.  But  where  the  cattle  come 
upon  the  railway,  at  a  point  not  proper  to  be  fenced,  as  at  the  intersection  of  a 
highway,  or  at  a  mill  yard,  the  company  are  not  liable  for  injury  to  them,  unless 
the  plaintiff  prove  some  fault  on  the  part  of  the  company's  servants,  besides  the 
want  offences.  Indianapolis  &  C.  R.  v.  Kinney,  8  Ind."  402;  Lafayette  &  Ind. 
Railw.  V.  Shriner,  6  Ind.  141. 
*  467,  468 


§  126.  INJURIES  TO   DOMESTIC   ANIMALS.  467 

cannot  recover  of  the  company.^  So,  too,  if  the  plaintiff  leave 
down  the  bars  at  a  cattle  crossing,  whereby  his  cattle  go  upon  the 
railway  and  are  killed,  he  cannot  recover.® 

7.  And  where  the  cattle  go  upon  a  railway  through  defect  of 
fences,  which  the  owner  is  bound  to  maintain,  and  suffer  damage, 
the  owner  has  no  claim  upon  the  company,  unless,  perhaps,  for 
what  has  sometimes  been  denominated  gross  negligence,  or  wilful 
injury ,^*^  for  in  such  cases  the  cattle  are  regarded  as  trespassers,^^ 
and  the  owner  the  cause  of  the  injury  sustained,  unless  the  railway 
might  have  prevented  it.  But  where  there  was  no  reasonable 
ground  to  suppose  that  the  portion  of  fence  which  it  was  the 
duty  of  the  company  to  build  would  have  protected  the  animals., 
and  the  owner  was  shown  to  have  been  guilty  of  negligence  in  not 
taking  care  of  them,  it  was  *  held  there  could  be  no  recovery, 
since  his  negligence  was  the  direct  and  proximate  cause  of  the 
injury.  ^^ 

8.  And  it  was  held  to  be  gross  negligence  for  the  owner  of  cattle 
to  suflfer  them  to  go  at  large,  in  the  vicinity  of  a  railway,  whether 
the  same  was  fenced  or  not.^    And  it  will  impose  no  additional 

•  Tower  r.  Prov.  &  Wor.  Railw.,  2  Rhode  Island,  404,  411 ;  Clark  v.  Sy. 
&  Utica  Railw.,  11  Barb.  112 ;  C.  H.  &  D.  Railw.  r.  Waterson,  4  Ohio  N.  S. 
424.  So,  also,  where  the  duty  of  maintaining  the  fences  along  the  railway  is 
upon  the  land-owner,  and  it  is  burned  down  by  fire,  communicated  by  the  com- 
pany's engines,  and  be  suffers  his  fields  to  remain  unfenced,  whereby  his  cattle  go 
upon  the  track,  and  are  killed,  he  cannot  recover.  If  the  company  are  in  fault, 
and  liable  to  damages  in  reganl  to  the  fire,  this  does  not  oblige  them  to  rebuild 
the  fence,  nor  will  it  justify  the  plaintiff  in  suffering  his  fields  to  remain  unfenced 
except  at  his  own  peril.     Terry  r.  New  York  Central  Railw.,  22  Barb.  574. 

•  Waldron  v.  Portland,  S.  &  P.  Railw.,  35  Maine,  422. 

'"  Tonawanda  Railw.  r.  Munger,  5  Denio,  265 ;  8.  c.  4  Comst.  349 ;  Clark  r. 
Syracuse  &  Utica  Railw.,  11  Barb.  112;  Williams  v.  Mich.  Central  Railw.,  2 
'Mich.  259.  In  this  case  the  horses  were  wrongfully  upon  the  railway,  and  the 
court  say  "  they  (the  company)  cannot  be  held  liable  for  any  accidental  in- 
jury which  may  have  occurred,  unless  the  lawful  right  of  running  the  train  was 
exercised  without  a  proper  degree  of  care  and  precaution,  or  in  an  unreasonable 
or  unlawful  manner."  See  also  Garris  r.  Portsmouth  &  Roanoke  liailw.,  2  Ired. 
324;  C.  H.  &  D.  Railw.  v.  Waterson,  4  Ohio  N.S.  424;  C.  C.  &  C.  Railw.  r. 
Elliott,  4  Ohio  N.  S.  474;  New  Albany,  &c.  Railw.  v.  McNamara,  11  Ind.  543. 

"  Joliet  &  Northern  Ind.  Railw.  v.  Jones,  20  Illinois,  221. 

'•  Marsh  v.  N.  Y.  &  Erie  Railw.,  14  Barb.  364;  Talmadge  v.  Rensselaer  & 
Saratoga  Railw.,  13  Barb.  493;  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B. 
Monroe,  75.  This  is  where  the  plaintiff  below  suffered  the  company  to  build  a 
railway  through  his  field  without  stipulating  that  they  should  fence  the  track, 
and  his  cattle  running  upon  the  track  while  depasturing  in  the  field  were  killed, 

•469 


468  INJURIES  TO   DOMESTIC   ANIMALS.  CH,  XVIII. 

obligation  upon  a  railway  company,  in  regard  to  cattle  suffered  to 
go  at  large  in  the  public  highways,  by  order  of  the  county  com- 
missioners having  charge  of  the  same,  if  the  company  are  guilty 'of 
no  negligence ;  in  such  cases,  the  owners  of  cattle  killed  at  the 
road-crossings,  by  trains  of  the  company,  cannot  recover  of 
them.^^ 

9.  It  has  been  held  not  to  be  sufficient  in  such  cases  to  charge 
the  company,  to  show  that  they  were  running  at  an  unreasonable 
rate  of  speed,  or  without  proper  care  in  other  respects.^*  The 
only  question  in  such  case  is,  we  apprehend,  whether  the  company, 
after  discovering  the  peril  of  the  animals,  might  have  so  conducted 
as  to  have  prevented  the  injury.^*  The  same  rule  obtains,  which 
does  in  actions  for  personal  injuries,  where  there  is  fault  in  both 
parties. 

This  subject  is  extensively  discussed  in  Yicksburg  and  Jack- 
son Railway  v.  Patton,^°  and  the  doctrine  enunciated,  that  the 
owner  of  domestic  animals  not  of  a  dangerous  character,  may 
lawfully  suffer  them  to  depasture  upon  the  unenclosed  commons, 
and  if  they  wander  upon  the  premises  of  others  not  enclosed,  the 
owner  of  the  animals  is  not  liable  for  any  damage  in  consequence. 
But  a  railway,  crossing  such  common,  has  the  same  right  to  its 
unobstructed  use  as  the  owner  of  cattle,  and  they  may  *  lawfully 
run  their  cars  at  all  times,  and  at  all  lawful  rates  of  speed  ;  but  if 
their  own  track  be  unenclosed  and  cattle  liable  to  wander  upon  it, 
the  company  should  have  proper  regard  to  so  running  their  trains 
as  not  to  injure  them.  And  if  cattle  are  injured  through  any 
default  of  the  company,  it  is  liable.     It  is  the  duty  of  the  com- 

and  the  court  held  the  company  are  not  liable,  "unless  the  injury  could  have 
been  avoided  with  reasonable  care."  But  in  Housatonic  Railw.  v.  Waterbury, 
23  Conn.  101,  it  was  held  that  in  such  case  the  company  hold  their  easement 
subject  to  the  land-owner's  right  to  cross  and  recross,  to  and  from  the  different 
sections  of  his  farm,  provided  the  right  is  reasonably  exercised,  and  that  the 
land-owner  is  not  chargeable  with  negligence  in  letting  his  cattle  run  on  his  land 
unfenced,  unless  he  knew  they  were  accustomed  to  keep  near  the  track,  thus  im- 
posing a  duty  of  watchfulness  on  both  parties. 

'^  Mich.  &  Southern  &  Northern  Ind.  Railw.  v.  Fisher,  27  Ind.  96. 

"  Vandergrift  v.  Rediker,  2  N.  J.  (Zab.)  185;  Clark  ».  Sy.  &  Utica 
Railw.,  11  Barb.  112;  Williams  r.  Mich.  Central  Railw.,  2  Mich.  259; 
Lafayette  &  Ind.  Railw.  v.  Shriner,  6  Porter  (Ind.),  141.  Here  it  is  held  the 
company  are  liable  for  gross  negligence,  even  where  the  cattle  are  wrongfully 
upon  the  road. 

'»  31  Miss.  156;  Gorman  v.  Pacific  Railw.,  26  Mo.  441. 
*470 


§  126.  INJURIES  TO   DOMESTIC   ANIMALS.  469 

pany  to  keep  their  engines  in  good  repair,  and  to  have  a  sufficient 
number  of  servants  to  manage  their  trains  with  safety ;  and  if 
through  any  default  in  any  of  these  duties  the  cattle  of  another 
are  injured,  it  will  be  liable.  It  was  held  in  this  case,  contrary  to 
the  general  course  of  practice,  that  it  may  be  proved  that  the 
general  character  of  the  engineer  in  charge  of  the  train  was  that 
of  a  reckless  and  untrustworthy  agent.  And  it  is  here  said  that 
the  company  are  liable  to  exemplary  damages  for  such  an  injury 
occurring  through  the  gross  negligence  or  wanton  misconduct  of 
its  agents ;  both  of  which  propositions  seem  not  entirely  recon- 
cilable with  the  general  course  of  decision. 

10.  And  it  has  been  held  that  where  the  statute,  in  general 
terms,  requires  railways  to  keep  gates  at  road-crossings  constantly 
closed,  that  one  whose  horses  leaped  from  his  field  into  the  high- 
way, and  then  strayed  upon  the  railway,  by  reason  of  the  gates  not 
being  kept  constantly  closed,  and  were  killed,  might  recover  of  the 
company.'^  In  such  case  it  was  held,  that  as  to  the  company 
the  horses  were  lawfully  on  the  highway,  as  the  provision  in  the 
statute  in  regard  to  keeping  the  gates  shut  was  intended  for  the 
protection  of  all  cattle,  horses,  &c.,  passing  along  the  highway, 
whether  strayed  there  or  not,  unless  perhaps  when  voluntarily 
suffered  to  run  at  large  in  the  highway.  And  the  duty  of  keeping 
cattle-guards  at  road-crossings  has  been  considered  to  extend  to 
the  protection  of  all  animals  in  the  street,  and  to  be  a  duty  which 
the  railway  owe  the  public  generally,  and  not  merely  the  owners 
of  cattle  driven  along  the  highway,  which,  in  striqtness,  is  the  only 
condition  in  which  cattle  are  rightfully  in  the  highway,  at  common 
law.^" 

••  Fawcett  ».  York  &  North  M.  Railw.,  16  Q.  B.  610;  8.  c.  2  Eng.  L. 
&  Eq.  289.  But  it  is  a  question  for  the  jur^%  under  the  circumstances, 
whether  they  believe  the  gates  were  left  open  by  the  fault  of  the  company's 
servants  or  the  tort  of  a  stranger.  Walford,  179,  citing  two  Nm  Prius  cases 
(1842),  (1845). 

"  Trow  V.  The  Vermont  Central  Railw.,  24  Vt.  487.  And  in  Railroad  r. 
Skinner,  19  Penn.  St.  298,  it  is  said,  that  if  cattle  are  suffered  to  go  at  large, 
and  are  killed  or  injured  on  a  railway,  the  owner  has  no  remedy  against  the  com- 
pany, and  may  himself  be  made  liable  for  damage  done  by  them  to  the  company ; 
and  it  is  unimportant  whether  the  owner  knew  of  the  jeopardy  of  the  cattle ;  and 
that  is  error  to  submit  the  question  of  negligence  to  the  jury,  unless  there  is  some 
evidence  of  such  fact. 

In  a  late  case  in  the  Circuit  Court  of  Virginia,  in  error  from  the  County  Court, 


470  INJURIES  TO   DOMESTIC   ANIMALS.  CH.  XVm. 

*  11.  In  the  New  York  and  Erie  Railway  v.  Skinner,^^  Cribson,  J., 
lays  down  the  riile  in  the  broadest  terms,  that  railways,  *  indepen- 

The  Richmond  &  Fetersburgh  Railw.  v.  Mrs.  Jones,  this  subject  is  discussed  at 
length,  6  Am.  Law  Reg.  346.  It  appeared,  upon  the  trial  of  the  case  before  the 
jvay,  that  the  company  had  been  assessed  in  damages  to  the  land-owners  along 
the  line  of  their  road,  in  consequence  of  additional  fence  being  required,  by 
reason  of  the  construction  of  the  railway.  The  animal,  for  killing  which  the  suit 
was  brought,  was  found  dead  near  the  crossing  of  the  highway  and  railway  in 
such  a  state  as  to  show  that  it  had  been  killed  by  collision  with  the  company's 
engines  very  near  the  crossing.  The  plaintiff  below  suffered  the  beast  to  run  at 
large  and  graze  upon  the  unenclosed  lands  in  the  neighborhood  of  the  railway, 
her  own  land  not  lying  in  immediate  contact  with  the  line  of  the  railway.  The 
case,  not  being  of  sufficient  amount  to  authorize  its  being  carried  to  the  Court 
of  Appeals,  the  decision  was  final,  and  the  case  is  discussed  at  length  upon  the 
principles  involved,  and  the  following  points  ruled :  — 

Prima  facie  the  company  are  not  liable,  even  when  cattle  are  killed  at  a  road- 
crossing.  Both  the  owner  of  the  cattle  and  the  company,  in  such  case,  being 
apparently  in  the  exercise  of  their  legal  rights,  the  law  presumes  no  breach  of 
duty,  and  thus  imposes  upon  the  party  who  alleges  such  breach  the  burden  of 
proof.  To  entitle  the  owner  in  such  case  to  recover  of  the  company,  he  must 
prove  want  of  care  or  skill  on  the  part  pf  the  company. 

But  where  cattle  are  killed  along  the  line  of  the  road,  and  not  at  a  road- 
crossing,  the  case  is  much  less  favorable  to  the  owner,  inasmuch  as  the  company, 
having  paid  the  expense  of  fencing  to  the  land-owners  adjoining,  are  entitled  to 
have  cattle  excluded  Irom  their  track.  And  the  statute  depriving  the  company 
of  an  action  against  the  owner  of  cattle  for  damages,  caused  by  their  straj-ing 
upon  the  road,  does  not  render  it  lawful  for  cattle  to  be  allowed  to  go  there 
unrestrained  by  fences. 

'8  19  Penn.  St.  298 ;  s.  c.  1  Am,  Law  Reg.  97.  But  in  Banner  r.  South 
Carolina  Railw.,  4  Rich.  329,  it  was  held,  that  the  fact  that  cattle  pasturing  on 
one's  own  land  are  injured  by  a  railway  company's  trains,  is  prima  Jacie  evidence 
of  the  liability  of  the  company,  and  that  the  company  could  only  excuse  them- 
selves, by  showing,  from  the  manner  the  injury  occurred,  that  they  were  not 
guilty  of  negligence.  And  that  for  this  purpose  the  company  must  show,  not 
only  that  the  injury  was  not  intentional,  but  that  it  was  unavoidable,  and  oc- 
curred without  the  least  fault  on  the  part  of  the  engineer.  But  to  the  main- 
tenance of  an  action  on  the  case  for  such  injury,  it  is  requisite  to  show,  that  it 
arose  from  the  negligence  of  the  company,  and  if  it  appear  to  have  been  wilful, 
or  accidental,  this  action  will  not  lie.  This  seems  to  be  assuming  the  extreme 
opposite  of  the  case  last  cited.  The  truth  will  be  found  to  lie  between  them, 
doubtless.  But  the  rule  in  Banner's  case  does  not  apply  where  the  animal  killed 
is  a  dog.  Wilson  r.  Railw.  Company,  10  Rich.  (S.  C.)  52.  But  it  does  apply 
to  the  killing  of  a  horse  at  night.     Murray  v.  Same,  id.  227. 

By  the  law  of  South  Carolina,  cattle  must  be  fenced  out,  not  fenced  in.  The 
entrj',  therefore,  of  cattle,  as  a  horse,  upon  an  unenclosed  railway  track,  is  no 
trespass.  Murray  r.  Railroad  Company,  10.  Rich.  227.  -And  it  was  held,  that  the 
*  471,  472 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  471 

dent  of  statutory  requisitions,  and  as  against  the  adjoining  land- 
owners, are  under  no  duty  whatever  to  fence  their  road,  nor  are 
they  bound  to  run  with  any  reference  whatever  to  the  possibility  of 
cattle  getting  upon  the  track.  Every  man  is  bound,  at  his  peril, 
to  keep  his  cattle  off  the  track,  and  if  he  do  not,  and  they  suffer 
damage,  he  has  no  claim  upon  the  company,  or  their  servants,  and 
is  liable  for  damages  done  by  them  to  the  company  or  its  passen- 
gers. The  opinion  contains  many  sensible  suggestions,  and  is 
curious  for  the  enthusiasm  and  zeal  manifested  by  one  already  be- 
yond the  ordinary  limit  of  human  life.  These  views  have  some- 
times been  adopted  in  the  jury  trials  in  other  states,  and  as  reported 
in  the  newspapers,  in  a  recent  case  in  Wisconsin,  Prichard  v.  The 
La  Crosse  and  Milwaukee  Railway.  But  they  are  certainly  not 
maintained  to  the  full  extent,  in  any  country  where  the  maxim  sic 
utere  tuo  tit  alienum  non  laedas  *  prevails,  even  to  the  limited  extent 
recognized  in  the  common  law  in  England. 

owner  of  a  horse,  permitted  to  roam  at  large  over  unenclosed  land,  is  not  guilty 
of  such  negligence  as  will  embarrass  his  recovery,  should  the  horse  be  killed  by 
the  negligence  of  another.     lb. 

The  statute  in  Greorgia,  1847,  makes  railway  companies  liable  for  all  damages 
done  to  live-stock  or  other  property.  But  it  was  held  they  were  not  liable  when 
the  damage  was  caused  by  the  design  or  negligence  of  the  owner.  Macon  &  W. 
Railw.  r.  Davis,  13  Ga.  68.  And  in  New  York  it  is  held,  that  their  general 
statute,  making  railway  companies  liable  for  all  damage  done  to  cattle,  horses, 
and  other  animals,  until  they  shall  fence  their  roads,  renders  them  liable  to  the 
owner  of  cattle,  which  strayed  into  an  adjoining  close,  where  they  were  trespass- 
ers, and  thence  upon  the  railway,  or  from  the  highway  upon  the  railway.  And 
that  it  makes  no  difference  how  the  cattle  came  upon  the  railway,  unless  it  is  by 
the  direct  act  or  neglect  of  the  owner,  so  long  as  the  company  do  not  fence  their 
road  according  to  the  requirements  of  the  statute.  Corwin  v.  N.  Y.  &  Erie  Railw., 
3  Kernan,  42.  In  this  case  the  company  had  contracted  with  the  land-owner  to 
build  the  fence,  which  he  bad  not  done,  and  it  was  admitted,  tliat  if  he  had 
owned  the  cattle  he  could  not  recover.  It  is  somewhat  remarkable,  that  the  rights 
of  the  owner  of  cattle  trespassing  should  be  superior  to  those  of  the  owner  of  the 
land.  But  in  Shepard  r.  Buffalo,  N.  Y.  &  Erie  Railw.,  35  N.  Y.  641,  the  court 
advance  a  step  further  in  the  same  direction,  and  declare,  it  is  no  defence  that  the 
party  whose  cattle  are  killed  was  legally  bound  to  build  the  fence  himself,  under  a 
contract  between  his  assignor  and  the  company.  And  it  seems  to  be  the  dispo- 
sition of  the  court  to  give  the  statute  such  an  extensive  operation  that  the 
company  shall  be  absolutely  responsilile  for  all  cattle  injured,  until  it  causes 
the  erection  of  proper  fences,  according  to  the  requirements  of  the  statute. 
This  savors  rather  too  clearly  of  virtuous  enthusiasm  in  the  cause  of  the  public 
good,  to  be  very  generally  followed  by  others,  or  to  be  very  enduring  in  the 
place  where  it  originates. 

•473 


472  INJURIES  TO   DOMESTIC   ANIMALS.  CH.  XVIII. 

It  was  held  in  Gorman  v.  Pacific  Railway,  that  the  company 
were  not  bound  to  fence  their  road  ^  but  it  was  also  held  that 
the  jury  should  consider  the  fact  that  the  road  was  not  fenced, 
in  determining  whether  the  company  exercised  proper  care  under 
the  existing  circumstances ;  and  it  was  said  that  such  companies 
should  exercise  the  utmost  care  and  diligence  in  the  enjoyment 
of  their  own  privileges  to  avoid  doing  injury  to  others.^^ 

12.  It  has  been  considered  that  a  railway  is  not  responsible  for 
injuries  to  horses,  in  consequence  of  their  being  frightened  on  the 
road  by  the  noise  of  the  engine  and  cars,  in  the  prudent  and  or- 
dinary course  of  their  operations.^^ 

13.  The  subject  of  negligence  in  the  plaintiff,  which  will  pre- 
vent his  recovery,  is  discussed  much  at  length  in  Beers  v.  The 
Housatonic  Railway ,^1  and  in  the  main  the  same  views  are  adopted 
in  regard  to  injuries  to  cattle,  which  we  have  stated  in  regard  to 
injuries  to  persons.^  It  is  there  laid  down,  by  the  court,  that 
where  there  was  negligence  or  want  of  care  in  whatever  degree,  by 
either  party,  is  a  question  of  fact  to  be  determined  by  the  jury, 
and  that  even  where  the  circumstances  are  all  admitted,  it  will  not 
be  determined  as  a  question  of  law,  but  the  inference  of  negligence, 
or  no  negligence,  is  one  of  fact  for  the  jury. 

14.  But  this,  we  apprehend,  is  true  only  where  the  circum- 
stances leave  the  inference  doubtful.  If  the  proof  is  all  one 
way,  either  in  favor  of  or  against  negligence  having  intervened, 
the  inference  is  always  one  of  law  for  the  court.^ 

*  15.  There  are  some  few  cases  where  actions  have  been  brought 
for  injuries  to  cattle  or  horses,  in  consequence  of  some  alleged  re- 
mote negligence  in  the  company.  In  one  case,^  the  action  was 
for  the  loss  of  a  horse,  by  falling  into  a  large  well  upon  the  com- 

•»  26  Mo.  441. 

»  Burton  v.  The  Phil.  Wil.  &  Bait.  Railw.,  4  Harr.  252. 

*'  19  Conn.  666.  And  in  Poler  v.  New  York  Central  Railw.,  16  N.  Y. 
476,  where  a  gate  adjoining  plaintifTs  land  upon  defendant's  land  got  out  of 
repair  and  liable  to  be  blown  open,  and  the  plaintiff,  without  giving  notice  to 
defendant,  took  measures  to  secure  the  gate,  which  proved  ineffectual,  and  his 
cattle  escaped  through  the  fence  and  were  killed  on  the  track  of  defendant's  road, 
it  was  a  question  of  fact  whether  the  plaintiff  was  guilty  of  culpable  negligence. 

**  Post,  §  177,  and  cases  cited ;  Chicago  &  Mis.  Railw.  v.  Patchin,  16  111.  198. 

*»  Underhill  v.  N.  Y.  &  Harlem  Railw.,  21  Barb.  489;  Lyndsay  v.  Conn.  & 
Pas.  Rivers  Railw.,  27  Vt.  643 ;  Scott  v.  W.  &  R.  Railw.,  4  Jones  Law,  432. 

"  Aurora  Branch  Railw.  v.  Grimes,  13  111.  585. 
♦474 


§  126.  INJURIES  TO   DOMESTIC   ANIMALS.  473 

pany's  grounds.  The  plaintiff  had  frequent  car-loads  of  lumber 
coming  to  the  company's  station,  and  he  requested  them  to  remove 
it  to  a  position  on  their  track  where  it  could  be  discharged  into  his 
own  lumber-yard,  which  they  declining  to  do,  he  drew  it  with  this 
horse  to  the  proper  point,  and  unloaded  it.  Upon  another  car 
arriving  he  attempted  to  do  the  same,  without  consulting  the  com- 
pany, but  his  horse  proved  restive  and  backed  off  the  track,  and 
in  his  struggle  fell  into  the  well.  The  plaintiff  had  a  verdict 
below,  and  a  new  trial  was  awarded,  upon  the  ground  that  the 
duty  of  the  company  to  exercise  care  and  prudence  depends  upon 
the  question  whether  the  plaintiff  is  in  the  exercise  of  a  legal  right. 
For  if  not,  he  must  show  that  he  exercised  extraordinary  care 
before  he  can  be  permitted  to  complain  of  the  negligence  of  an- 
other. 

IS.  And  in  another  case,*  the  plaintifTs  horse  was  killed  by 
breaking  a  blood-vessel  in  struggling  from  fright  at  the  defendants' 
train  of  cars  in  its  near  approach  to  the  turnpike  road,  which  by 
their  charter  they  were  required  to  purchase,  and  in  crossing  all 
roads  to  restore  them  to  their  former  state  of  usefulness.  At  the 
place  of  the  injury  the  defendants  excavated  their  road-bed  upon  the 
turnpike,  some  five  feet  below  the  surface,  leaving  a  steep  descent 
upon  the  railway,  and  no  fence  between  the  track  of  the  turn- 
pike and  railway.  The  plaintiff  was  passing  along  the  turnpike,  lead- 
ing his  horse  at  the  time.  It  was  held,  that  under  their  charter  the 
company  were  liable,  if  the  excavation  impaired  the  safety  of  the 
turnpike  for  public  travel,  and  that  such  "  encroachments  of  de- 
fendants upon  a  turnpike  is  a  public  nuisance,  for  which  any  per- 
son sustaining  a  particular  injury  may  maintain  an  action." 

17.  And  it  has  been  laid  down,  in  general  terms,  that  a  *  railway 
company,  authorized  to  use  steam  locomotive  engines  upon  their 
road,  is  not  liable  for  the  damage  or  disturbance  caused  by  such 
use,  near  a  turnpike  road  existing  before  the  railway  company,  un- 
less such  engines  are  used  in  an  extraordinary  and  unreasonable 
manner.* 

18.  And  where  the  legislature  imposed  a  penalty  upon  railways, 
of  $100  for  every  month's  delay,  in  performing  the  duty  of  keep- 

*»  Moshier  v.  Utica  &  Sch.  Railw.,  8  Barb.  427.  But  see  Coy  c.  Utica  &  8ch. 
Railw.,  23  Barb.  643. 

••  Bordentown  &  South  A.  Turnpike  v.  Camden  &  Amboy  Railw.,  2  Harrison, 
314;  Coy  r.  Utica  &  Sch.  Railw.,  23  Barb.  643. 

•476 


474  INJURIES  TO   DOMESTIC   ANIMALS  CH.  XVIII. 

ing  and  maintaining  legal  and  sufficient  fences  on  the  exterior 
lines  of  their  road,  as  required  by  their  charters,  it  was  held  that 
the  neglect  of  the  corporation  to  perform  this  duty,  rendered  them 
liable  to  reimburse  any  person  suffering  injury  thereby,  in  his 
property,  in  an  action  at  common  law.  And  if  the  defect  in  the 
fences  by  which  the  injury  occurs  were  known  to  the  company, 
they  are  liable  for  the  damage  suffered,  notwithstanding  their  en- 
gineer was  at  the  time  in  the  exercise  of  due  care,  and  notwith- 
standing the  fence  was  originally  imperfectly  built  by  the  plaintiff 
for  the  company .27 

19.  In  an  action  for  injury  to  domestic  animals  by  the  passing 
engines  of  a  railway  company,  it  is  not  conclusive  of  the  liability 
of  the  company  that  the  damage  occurred  in  consequence  of  the 
passing  of  their  engine,  and  that  the  engineer  omitted  the  statutory 
requirements  of  blowing  the  whistle,  ringing  the  bell,  reversing-the 
engine,  &c.  It  should  still  be  submitted  to  the  determination  of 
the  jury  whether  the  damage  was  caused  by  the  engineer's  neglect 
of  duty,  as  that  is  a  question  lying  exclusively  within  their  pro- 
vince.® 

20.  One  who  voluntarily  suffers  his  cow  to  go  at  large  in  the 
public  streets  of  a  city,  with  no  one  to  take  charge  of  her,  and  thus 
to  stray  upon  a  railrway  track,  at  a  time  when  cars  are  passing,  is 
guilty  of  such  carelessness  that  he  cannot  recover  for  any  *  injury 
to  the  animal  through  any  degree  of  negligence  short  of  that 
which  is  gross.® 

21.  The  competency  of  the  evidence  of  experts  in  regard  to 
the  management  of  locomotives  so  as  to  avoid  the  possibility  of 
doing  damage  to  animals  upon  the  track,  is  discussed  in  a 
late  case  in  Ohio.^  It  is  not  easy  to  define  any  very  exact  rule 
in  regard  to  the  extent  of  the  testimony  of  experts  as  to  the 
practicability  of  avoiding  doing  damage,  under  a  given  state  of  ex- 

*^  Norris  V.  Androscoggin  Railw.,  39  Maine,  273.  In  this  case  the  fence  was 
stone-wall,  built  by  plaintiff,  by  contract  with  the  company  some  two  years  be- 
fore, and  accepted  by  them.  The  gap  in  the  wall  whereby  the  animal  escaped 
upon  the  track  of  the  railway,  occurred  several  days  before,  and  was  known  to 
the  defendants.  There  was  no  other  e%'idence  of  the  manner  of  constructing 
the  wall.  The  court  held  the  plaintiff  stood  in  the  same  position,  as  to  his  claim, 
as  if  any  other  one  had  built  the  wall. 

"  Memphis  &  Charlotte  Railw.  v.  Bibb,  37  Ala.  699. 

»  Bowman  v.  Troy  &  Boston  R.  Co.,  37  Barb.  516. 

»  BellfontaJne  &  Iowa  R.  Co.  r.  Bailey,  11  Ohio  N.  S.  333. 
*476 


§  126.  INJURIES   TO   DOMESTIC   ANIMALS.  475 

posure  of  persons  or  animals.  The  subject  is  a  broad  one,  and  to 
its  full  discussion  would  require  a  volume,  instead  of  a  single  para- 
graph. But  we  make  no  question,  the  management  of  a  locomotive 
steam  engine,  under  any  and  all  conditions  and  circumstances,  is  a 
matter  of  science  and  skill,  as  to  which  courts  and  juries  are  not  or- 
dinarily competent  to  form  a  reliable  and  satisfactory  judgment, 
and  tliat  they  do  therefore  stand  in  need  of  aid  and  instruction  in 
regard  to  the  matter,  whenever  it  comes  before  them  for  deter- 
mination, and  that  consequently  the  testimony  of  experts  may 
always  be  received  under  the  ordinary  limitations  and  restrictions. 

22.  The  subject  of  the  responsibility  of  railways  for  injury  to 
cattle  running  at  large  and  coming  upon  their  track  is  very  care- 
fully considered  in  a  later  case  in  Ohio.^^  It  is  here  declared  that 
the  owner  of  cattle  who  does  not  keep  them  within  his  own  en- 
closure, when  he  might  do  so  by  proper  care,  cannot  require  of  a 
railway  company  to  regulate  the  management  and  speed  of  their 
trains  with  reference  to  cattle  coming  upon  their  track.  Such 
companies,  like  all  others,  have  a  right  to  regulate  the  manage- 
ment and  conduct  of  their  business  solely  with  reference  to  the 
security  of  persons  and  property  in  their  charge,  and  the  meeting 
of  their  reasonable  appointments  in  regard  to  them,  and  may  make 
their  plans  upon  the  reasonable  and  legal  presumption  that  other 
persons  will  perform  all  their  legal  obligations  towards  them,  and 
consequently  that  the  owners  of  domestic  animals  will  keep  them 
at  home,  where  alone  they  belong,  and  not  suffer  them  to  stray 
upon  the  track  of  a  railway  company,  unless  they  *  are  prepared  to 
incur  the  legitimate  hazards  of  such  an  exposure.  But  when  a 
railway  company  finds  cattle  upon  its  track,  it  is  bound  to  avoid 
damage  to  them,  if  practicable,  by  the  same  degree  of  effort  that  a 
prudent  owner  of  the  cattle  would  be  expected  to  do,  properly  con- 
sidering the  hazard  both  to  the  train  and  the  cattle.  And  the 
proper  inquiry  in  such  a  case  is,  whether  the  agents  of  the  com- 
pany exercised  reasonable  and  proper  care,  in  running  their  engine, 
to  avoid  injury  to  the  cattle  of  the  plaintiff;  and  the  facts  and  cir- 
cumstances bearing  upon  this  question  are  for  the  exclusive  con- 
sideration of  the  jury. 

23.  And  much  the  same  view  is  taken  in  a  recent  case  in  Ken- 
tucky ,**  where  it  is  said  that  the  paramount  duty  of  a  railway 

»•  Central  Ohio  R.  Co.  v.  Lawrence,  18  Ohio  N.  S.  66. 
»  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177.     But  railway  com- 

*477 


476  INJURIES   TO   DOMESTIC   ANIMALS.  CH.  XVIII. 

company,  in  the  conduct  of  a  train,  is  to  look  to  the  safety  of  per- 
sons and  property  therein,  and  subordinate  to  this  is  the  duty  to 
avoid  unnecessary  damage  to  animals  straying  upon  the  road. 
And  while  a  railway  company  is  not  justified  in  any  conduct  of  its 
agents,  in  regard  to  cattle  upon  its  track,  which  is  needless,  wan- 
ton, or  wilful,  it  cannot  be  responsible  for  any  thing  short  of  this, 
since  the  owners  of  cattle  are  specially  bound  to  keep  them  off  the 
tracks  of  railways. 

24.  And  in  a  late  case  in  Maryland,^  it  was  held  that  the  well- 
settled  principle  of  the  common  law,  that  a  plaintiff  is  not  entitled 
to  recover  for  injuries  to  which  his  own  fault  or  negligence  has  di- 
rectly contributed,  is  not  abrogated  by  the  several  acts  of  assembly, 
regulating  the  liabilities  of  railways  in  this  state  for  stock  killed  or 
injured  by  their  trains.  These  acts  leave  the  question  of  the  ef- 
fect of  the  plaintifTs  conduct  upon  his  right  to  recover  for  the  acts 
of  others  where  it  was  at  the  common  law.  But  the  onus  of  proof 
is  changed  by  the  statute,  and  where  stock  is  killed  the  law 
now  imputes  negligence  to  the  company,  unless  it  can  show  that 
the  damage  results  from  unavoidable  accident.^  It  was  not  in- 
tended hereby  to  interfere  with  the  time-table  or  the  rate  of'  speed 
on  railways.  The  act  leaves  all  this  to  the  discretion  of  the  com- 
panies, but  imposes  upon  them  the  highest  degree  of  care  and  cau- 
tion ;  and  in  the  absence  of  fault  on  the  part  of  the  plaintiff  it  must 
appear  that  the  collision  took  place  without  any  *  fault  or  negligence 
on  the  part  of  the  company  or  its  agents,  in  order  to  exonerate 
them.  In  other  words,  if  the  plaintiff  is  not  in  fault  the  company 
will  be  responsible,  unless  the  damage  is  the  result  of  unavoidable 
accident. 

25.  In  Indiana  it  is  held,  that  in  an  action  against  the  company 
for  killing  stock  it  must  appear,  both  in  the  complaint  and  proof, 
that  the  damage  resulted  from  the  carelessness  of  the  company  or 
the  omission  to  fence  their  road.^ 

26.  In  Missouri  ^  it  is  determined  by  statute  and  the  construc- 

panies  are  not  bound  to  maintain  fences,  sufficient  to  exclude  the  possibility  of 
cattle  coming  upon  their  line,  even  under  the  extreme  duty  and  obligation  which 
they  owe  toward  the  protection  of  their  passengers.  Buxton  v.  N.  E.  Railw.  Law 
Rep.  3  Q.  B,  549. 

"  Keech  v.  Baltimore  &  Wash.  R.  Co.,  17  Md.  32. 

^  Indianapolis,  &c.,  R.  Co.  v.  Sparr,  15  Ind.  440;  Same  v.  Williams,  id.  4S6. 

"  Meyer  v.  North  Mo.  R.  Co.,  35  Mo.  352;  Powell  r.  Han.  &  St.  Jos.  R. 
Co.,  id.  457 ;  Burton  v.  North  Mo.  R.  Co.,  30  id.  372. 
*478 


§  126.  INJURIES  TO   DOMESTIC   ANIMALS.  477 

tiou  of  the  courts,  that  if  the  accident  occur  upon  a  portion  of  the 
line  not  enclosed  by  a  lawful  fence,  and  not  at  a  road  or  street 
crossing,  whereby  domestic  animals  are  killed  or  injured,  the  com- 
pany are  responsible,  at  all  events,  and  without  reference  to  any 
question  of  negligence,  either  on  their  part  or  that  of  the  owner  of 
the  animals.  But  at  highway  or  street  crossings  the  company  are 
not  responsible  for  any  damage  to  such  animals,  unless  it  occur 
through  some  neglect  or  fault  on  their  part. 

27.  In  California*  it  seems  to  be  considered  that  the  custom  of 
the  country  to  suffer  domestic  animals  to  go  at  large  on  the  com- 
mons will  override  the  rule  of  the  common  law,  obliging  the  owner 
to  restrain  his  cattle  -within  his  enclosures,  and  that  consequently 
no  negligence  is  imputable  to  the  owner  on  account  of  so  suffering 
his  animals  to  go  at  large.  But  railway  companies  are  not 
held  responsible  for  damage  inflicted  upon  such  animals  so 
running  at  large  unless  it  might  *have  been  avoided  by  or- 
dinary care  and  prudence  on  the  part  of  the  company  at  the 
time.*'^ 

28.  There  seems  to  have  been  some  very  nice  questions  raised 
in  the.  courts  of  Illinois,  for  if  it  were  not  so  some  of  the  decisions 
would  seem  to  partake  largely  of  the  character  of  incomprehensi- 
bility. For  we  find  it  gravely  declared,  in  one  case,^  that  the  law 
does  not  require  any  different  words  to  be  used  in  proving  a  case 
against  a  railway  from  those  used  in  other  cases.  It  is  only  neces- 
sary the  mind  should  be  convinced  of  the  existence  of  the  neces- 

*•  Waters  r.  Moss,  12  Cal.  636.  And  in  Alger  r.  Miss.  &  Mo.  Railw.  Co., 
10  Iowa,  268,  it  was  held  that  permitting  cattle  to  run  at  large  does  not  impute 
negligence  to  the  owner,  nor  is  he  liable  as  a  trespasser  if  they  are  found  upon 
an  unfenced  railway.  A  railway  company  is  bound  to  exercise  ordinary  care 
not  to  injure  animals  coming  upon  their  track  through  delect  of  fence.  After 
the  road  is  fenced  the  company  is  only  liable  in  such  cases  for  gross  neglect. 
And  in  McCall  v.  Chamberlain,  13  Wise.  637,  it  is  held  that  the  duty  upon  rail- 
way companies  to  fence  their  roads  is  intended  for  the  protection  of  the  public 
generally.  And  until  such  fences  are  built  the  company  is  liable  for  all  injuries 
to  animals  upon  their  track,  without  reference  to  any  question  of  being  rightfully 
in  the  adjoining  land  from  whence  they  escaped  upon  the  track.  And  the  lessee 
of  the  company  assumes  all  their  responsibility. 

•^  Richmond  p.  Sacramento  Valley  R,  Co.,  18  Cal.  861.  There  is  no  statute 
here  requiring  railways  to  be  fenced  by  the  companies.  But  when  that  is  re- 
quired, and  the  plaintiff  alleges  the  duty  was  not  performed,  he  must  prove  it  aa 
part  of  his  case.     Indianapolis,  &c.,  R.  Co.  r.  Wharton,  13  Ind.  609. 

»  Ohio  &  Miss.  R.  Co.  c.  Irvin,  27  111.  178. 

•479 


478  INJURIES   TO   DOMESTIC   ANIMALS.  CH.  XVIII. 

sary  facts.  And  in  the  same  case :  The  presumption  is  that  the 
houses  compose  a  village,  and  if  an  animal  is  killed  beyond  the 
houses  the  presumption  is  that  it  is  killed  beyond  the  village,  and 
if  the  town  extends  beyond  the  houses  the  defendant  should  know 
the  fact ;  and  also :  Every  one  is  supposed  to  have  some  idea  of 
the  value  of  such  property  as  is  in  general  use,  and  it  is  not  neces- 
sary to  have  a  drover  or  butcher  to  prove  the  value  of  a  cow.  And 
in  another  case  in  this  state  it  seems  to  have  been  claimed  that  the 
declaration  against  a  railway  for  injuries  to  domestic  animals  must 
negative  the  possibility  of  any  excuse  on  the  part  of  the  company. 
But  the  court  hold  that  matters  of  excuse  on  the  part  of  the  com- 
pany, as  that  the  animals  were  killed  at  a  farm  crossing  and  that 
the  road  was  properly  fenced  by  them,  must  be  shown  by  way  of 
defence.^  But  it  was  held  in  another  case  in  that  state,  that  the 
plaintiff,  in  making  out  his  own  cause  of  action,  must  negative  by 
proof  the  existence  of  a  public  crossing  where  the  killing  occurred, 
and  should  show  that  the  defendants  were  bound  to  fence  at  that 
point.*^  And  it  was  held  in  a  later  case,  that  it  was  negligence  in 
a  railway  company  to  allow  vegetation  to  grow  upon  its  right  of 
way,  so  that  cattle  may  be  concealed  from  view.^^ 

29.  K  one  allows  stock  to  run  in  the  highway  near  a  railway 
*  crossing  it  is  such  negligence  that  he  cannot  recover  for  any  in- 
jury *2  thereto.  And  if  one  allows  his  cattle  so  to  run  in  the 
highway  and  thus  come  upon  the  track  of  the  railway,  and  the 
company  use  all  statutory  and  other  reasonable  precautions  to 
avoid  damage  to  them,  the  owner  cannot  recover  for  any  such 
damage  which  is  thus  caused  either  wholly  or  in  part  by  his  own 
neglect,  and  he  would  also  be  liable  for  all  injury  to  the  com- 
pany or  to  persons  or  property  in  their  charge. ^^  And  the  omis- 
sion of  the  company  to  sound  the  whistle  or  to  ring  the  bell,  in 
such  cases,  will  not  render  them  responsible  for  damage  to  cattle, 
unless  it  appear  that  such  precautions  would  have  prevented  the 
injury.^ 

30.  In  actions  for  injury  to  cattle,  if  negligence  is  clearly  proved 
on  the  part  of  the  plaintiff,  the  company  are  not  responsible  unless 

39  Great  Western  Railw.  v.  Helm,  27  111.  198. 
«  Ohio  &  Miss.  R.  Co.  v.  Taylor,  27  111.  207. 
♦>  Bass  0.  Chicago,  B.  &  Quincy  R.,  28  111.  9. 
«.Ch.  Bur.  &  Quincy  R.  Co.  v.  Cauffman,  28  Hi.  613. 
«  Illinois  Central  Railw.  v.  Phelps,  29  111.  447. 
*480 


§  126.  INJURIES  TO   DOMESTIC   ANIMALS.  479 

guilty  of  gross  negligence,  which  implies  wilful  injury.**  In  such 
actions,  founded  upon  the  statute,  the  declaration  should  negative 
all  the  exceptions  in  the  statute  ;  *^  but  the  plaintiff  is  not  called 
upon  to  negative  in  proof  the  existence  of  any  contract  between 
himself  and  the  company  to  maintain  the  fences  along  tlie  line  of 
the  road  against  his  land.*^ 

31.  As  the  statute  does  not  require  railway  companies  to  fence 
their  road  within  the  limits  of  cities  and  villages,  they  are  not 
responsible  for  damage  to  domestic  animals  caused  by  their  trains 
within  such  corporate  limits ;  and  if  the  animal  come  upon  their 
track  within  these  limits,  and  is  driven  by  the  train  beyond  these 
limits  and  there  killed,  without  any  fault  on  the  part  of  tlie  com- 
pany, it  is  immaterial  whether  the  road  was  properly  fenced  at  the 
point  where  the  animal  was  killed,  as  it  came  upon  the  track  at  a 
point  where  the  company  were  not  obliged  to  fence.**  The  mere 
killing  of  an  animal  by  a  railway  company  does  not  render  them 
liable  unless  they  have  been  guilty  of  negligence  or  the  case  comes 
within  the  statute.** 

32.  In  cases  where  the  company  are  required  by  statute  to  *  ring 
the  bell  or  sound  the  whistle,  and  that  is  omitted,  if  injury  occur 
in  consequence,  they  will  be  responsible,  unless  the  party  injured 
was  himself  guilty  of  negligence  contributing  to  such  result.*'  It 
is  here  said  that  railway  companies  are  responsible  for  injuries  to 
persons  or  property,  when  wilfully  done,  or  resulting  from  gross 
neglect  of  duty.  The  company  to  exonerate  themselves  must  use 
all  reasonable  or  statutory  precautions  to  prevent  the  injury,  and 
an  omission  to  do  so  will  render  them  responsible,  if  the  omission 
produce  or  contribute  to  the  injury,  and  the  plaintiff  was  not 
himself  in  fault  in  any  particular  also  contributing  to  the  injury.*^ 

33.  But  in  actions  of  tort  against  railway  companies  to  recover 
damages  for  killing  cattle  upon  their  track,  it  is  not  competent  to 
prove  the  company  guilty  of  negligence  in  running  their  other 
trains,  beside  the  one  by  which  the  cattle  were  killed.*® 

♦*  nUnois  Central  Railw.  v.  Goodwin,  30  111.  117. 

♦*  Great  Western  Railw.  r.  Bacon,  30  III.  347. 

♦•  Same  v.  Morthland,  30  Dl.  451 ;  Galena  &  Chicago  R.  Co.  r.  Griffin,  31 
m.  303.  As  to  cases  under  positive  statute,  see  Illinois  Central  Railw.  Co.  e. 
Swearingen,  38  111.  289. 

«  Great  Western  R.  Co.  v.  Geddis,  33  Dl.  304. 

*»  Mississippi  Central  Bailw.  v.  Miller,  40  Miss.  45. 

•481 


480 


FENCES. 


CH.  XIX. 


♦CHAPTER   XIX. 


FENCES. 


SECTION    I. 


Upon  whom  rests  the  obligation  to  maintain  fences. 


1.  Bt/  the  English  statute  there  is  a  separate 

provision  made  Jor  fencing. 

2.  This  provision  is  there  enforced  against 

the  companies  hy  mandamxis. 

3.  But  where  no  such  provision  exists,  the 

expense  of  fencing  is  part  of  the  land 
damages. 

4.  And  where  that  is  assessed,  and  payment 

resisted  by  the  company,  the  land-owner 
is  not  obliged  to  fence. 

5.  In  some  cases  it  has  been  held  the  fencing 

is  to  be  done  equally,  by  the  company 
and  the  land-owner. 

6.  Assesstnent  of  land-damages,  on  condition 

company  build  fences,  raises  an  implied 
duty  on  their  part. 

7.  In  some  states,  owners  of  cattle  not  re- 

quired to  confine  them  upon  their  own 
land. 

8.  Lessee  of  railway  bound  to  keep  up  fences 

and  farm  accommodations. 

9.  Company  bound  to  fence  land  acquired  by 

grant. 

10.  Fartn-crossings  required  tc.'terever  neces- 

sary. 

11.  Where  land-owner  declines  farm  accom- 

modations, has  no  redress ;  courts  of 
equity  will  not  decree  specific  perform- 
ance. 

12.  Fences  and  farm  accommodations  not  re- 

quired for  safety  of  servants  and  em- 
ployees. 

13.  Requisite  proof  where  company  liable  for 

all  cattle  killed. 

14.  Party  bound  to  fence  assumes  primary 

responsibility. 

♦482 


16.    Company  not  responsible  for  injury  at 
road-crossings. 

16.  Railway  companies  not  responsible  for  in- 

jury  to  cattle  by  defect  offence  about 
yard. 

17.  Case  of  horse  escaping  through  defect  of 

fence. 

18.  It  must  appear  the  injury  occurred  by 

default  of  company. 

19.  Cattle-guards  required  in  villages  but  not 

so  as  to  render  streets  unsafe. 

20.  Company  responsible  for  injuries  through 

defect  offences  and  cattle-guards. 

21.  Courts  of  New  Hampshire  maintain  com- 

mon-law responsibility, 

22.  Company  responsible  as  long  as  they  con- 

trol  road. 

23.  Maintaining  fences  along  the  line  of  rail- 

way, matter  of  police. 

24.  Rule  as  to  land-owner  agreeing  to  main- 

tain fence,  Sfc. 

25.  Company  not  responsible  for  defect  of 

fence  unless  in  fault. 

26.  Railway  not  responsible  in  Indiana  un- 

less in  fault. 

27.  Company  not  Uable  where  fence  thrown 

down  by  others. 

28.  Where  owner  in  fault  he  cannot  recover 

unless,  ^c. 

29.  Rule  of  damages  for  not  building  fence, 

&c. 

30.  Land-owner  must  keep  up  bars. 

31.  Illustrations  oj'the  general  rule. 

32.  In  actions  under  statute  case  must  be 

brought  within  it. 
88.  In  Pennsylvania  one  required  to  keep  his 
cattle  at  home. 


§  127.  UPON  WHOM  THE   DUTY  RESTS.  481 

*  §  127.  1.  By  tlie  Railway  Clauses  Consolidation  Act  *  it  is  made 
the  duty  of  the  railways  in  England,  before  they  use  land  for  any 
of  their  purposes,  to  fence  it,  and  make  convenient  passes  for  the 
owner,  which,  if  the  parties  do  not  agree,  are  to  be  determined  by 
two  magistrates.  Under  this  statute  it  has  been  held,  tliat  the 
railway  is  not  excused  from  making  the  necessary  accommodations 
to  keep  up  communication,  to  the  owner,  between  different  parts 
of  lands,  intersected  by  the  line  of  a  railway,  because  these  are  not 
defined  in  the  arbitrators'  award  of  land  damages.  They  -are 
totally  distinct  things  from  the  land  damages.^  And  where  the 
jury,  assessing  land  damages,  also  made  a  separate  verdict  for  the 
expense  of  crossing  the  railway  by  a  private  way,  it  was  considered 
that  they  exceeded  their  jurisdiction,  and  their  proceedings  were 
quashed.* 

2.  It  is  considered,  in  the  English  courts,  that  the  expense  of 
fences  and  crossings  being  imposed  upon  the  railways  by  statute, 
perpetually,  and  the  mode  of  enforcing  its  performance  pointed 
out  in  the  statute,  it  has  no  connection  with  the  land  damages, 
but  is  to  be  enforced  under  the  statute,  and  land  damages  are 
to  be  appraised,  upon  the  basis  of  that  duty  resting  upon  the  rail- 
way. 

3.  But  where  the  statute  makes  no  such  provision,  the  expense 
of  fencing  and  making  crossings  are  important  considerations  *  in 
estimating  damages  for  the  land  taken,  and  this  expense  should 

'  8  and  9  Vict.  ch.  20,  §  40.  But  in  Kyle  ».  Auburn  &  Rochester  Railw.,  2 
Barbour's  Ch.  489,  the  court  declined  to  interfere  by  injunction,  to  compel  the 
building  of  a  farm-crossing,  although  the  company  assumed  before  the  jury  for 
assessing  land  damages,  that  such  a  crossing  should  be  built  by  them,  the  plans 
showing  no  such  crossing.  It  is  said,  under  such  circumstances,  to  be  the  duty 
of  the  land-owner  to  make  necessary  crossings,  and  that  he  is  a  trespasser  for 
crossing  the  railway  without  them ;  and  this  should  be  so  considered,  in  assessing 
damages  for  taking  the  land,  and  compensation  made  for  such  expense. 

*  Skerratt  v.  The  North  Staffordshire  Railw.,  5  Railw.  C.  166,  per  Lord  Cot- 
tenham.  Chancellor.     See  post,  §  193,  n.  3. 

*  In  re  South  Wales  Railw.  Co.  v.  Richards,  6  Railw.  C.  197.  So  too  where 
the  land-owner  stipulated  with  the  promoters  for  certain  watering-places  and 
other  conveniences,  and  to  accept  £5,000  for  especial  damage,  and  to  withflraw 
thereupon  opposition  to  the  bill,  it  was  held  the  duty  to  make  suitable  watering- 
places  might  be  enforced  by  mandamus.  Reg.  r.  York  &  N.  Midland  Hailw., 
3  Railw.  C.  764 ;  infra,  §§  128,  190,  191.  The  provision  for  fences,  in  the  Eng^ 
llsh  statute,  being  a  separate,  independent,  general  provision,  is  enforced,  al-* 
together  aside  of  the  proceedings  to  assess  land  damages. 

31  ♦  488,  484 


482  FENCES.  CH.  XIX. 

undoubtedly  be  borne  by  the  company,  in  addition  to  paying  the 
value  of  the  land,  for  otherwise  the  land  is  taken  without  an  equiv- 
alent. But  the  courts  in  most  of  the  American  States  have  resisted 
this  view  wherever  it  was  practicable,  more  commonly  upon  some 
technical  ground  of  presumption  or  inference,  when,  in  fact,  the 
omission  of  such  an  express  provision  in  the  charter  or  the  general 
laws  of  the  states  was  wholly  the  result  of  oversight  in  the  legisla- 
tures. But  it  is  refreshing  to  find  some  courts  so  far  relieved  from 
the  trammels  of  mere  technicality  as  not  to  feel  compelled  to  sacri- 
fice an  obvious  principle  of  justice  to  the  shadow  of  a  mere  form. 
In  a  recent  case  in  California  we  find  an  announcement  upon  this 
question  which  evidently  comes  from  the  right  quarter,  a  sense  of 
simple  justice.  It  declares,  if  fences  are  rendered  necessary  for 
the  protection  of  the  crops  of  the  land-owner  by  means  of  the  con- 
struction of  the  railway  through  the  land,  the  cost  of  such  fences 
must  be  included  in  the  compensation  to  be  paid  by  the  company,* 
and  this  by  necessary  consequence  must  include  a  sum  sufficient 
to  indemnify  the  owner  against  the  constantly  accruing  expenses 
of  maintaining  such  fences.  And  the  tendency  of  the  more 
recent  decisions  is  sensibly  in  this  direction ;  and  we  might 
add,  without  ofience,  that  in  our  judgment  it  is  the  only  sen- 
sible direction  the  decisions  could  take,  and  we  have  always 
expected  them  to  take  such  a  direction  in  the  end,  however  late  it . 
may  come.^ 

4.  And  where  in  such  circumstances  the  commissioners  assessed 
the  land  damages,  and  a  separate  sum  for  building  fences,  and 
judgment  was  rendered  in  favor  of  the  land-owner,  for  both  sums, 
but  the  payment  resisted  by  a  proceeding  in  Chancery,  on  the  part 
of  the  railway,  and  while  this  was  still  undecided,  the  company 
commenced  running  their  engines,  and  the  cattle  of  the  occupier 
of  the  land  strayed  upon  the  track  and  were  killed  by  the  engmes 
of  the  company,  it  was  held,^  that  the  obligation  *  to  maintain  the 

*  Sacramento  Valley  Railw.  v.  Moffatt,  6  Cal.  74. 

'  Evansville  Railw.  v.  Fitzpatrick,  10  Ind.  120;  Same  v.  Cockran,  id.  660; 
Same  v.  Stringer,  651. 

«  Quimby  v.  Vermont  Central  Railw.  Co.,  23  Vt.  387;  See  also  Vander- 
kar  V.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.  But  in  the  English  Railway 
Acts,  where  the  company  is  required  to  make  crossings,  where  land  is  divided, 
and  the  mode  of  determining  the  nature  of  the  crossings  is  to  be  referred  to  two 
Justices,  upon  the  application  of  the  land-owner  ("in  case  of  any  dispute")  it 
was  held,  that  until  the  company  have  made  a  communication,  a  party  whose 
•486 


§  127.  UPON   WHOM  THE  DUTY  RESTS.  483 

fence  rests  primarily  upon  the  company,  and  until  they  have  either 
built  the  fences,  or  paid  the  land-owner  for  *  doing  it,  a  sufficient  time 
before  to  enable  him  to  do  it,  the  mere  fact  that  cattle  get  upon  the 

land  had  been  severed  by  the  railway  has  a  right  to  pass  from  one  portion  of  his 
property  to  the  other  across  the  railway,  at  any  point,  and  that  the  section  re- 
quiring the  owner  to  pass  at  such  a  place  as  shall  "  be  appointed"  for  crossing, 
means,  "  when  such  places  shall  have  been  appointed."  Grand  Junction  Railw. 
V.  White,  8  M.  &  W.  214 ;  8.  c.  2  Railw.  C.  659.  And  where,  at  the  time  of 
appraising  land  damages,  the  land-owner,  in  the  presence  of  the  agents  of  the 
company,  pointed  out  to  the  commissioner  the  place  where  he  would  have  a  farm- 
crossing,  and  no  objection  was  made  by  the  company,  and  the  sum  awarded  was 
paid,  but  the  company,  in  constructing  their  road,  were  throwing  up  an  embank- 
ment at  that  point,  and  locating  the  crossing  at  a  different  place,  where  it  would 
be  inconvenient  for  the  land-owner,  an  injunction  was  granted,  until  the  company 
should  either  make  a  suitable  crossing  or  compensate  the  land-owner.  Wheeler 
c.  Rochester  &  Sy.  Railw.,  12  Barb.  227 ;  Milwaukee  &  Mis.  Railw.  v.  Eble,  4 
Chand.  72.  It  is  here  held,  that  the  land-owner  is  entitled  to  include,  in  his 
damages,  the  expense  of  fencing,  as  incidental  to  the  taking  of  the  land.  But 
the  contrary  is  held  in  a  very  elaborate  case  in  Iowa,  Henry  v.  Dubuque  & 
Pacific  Railw.,  2  Clarke,  288.  But  the  argument  of  the  court  seems  to  us  un- 
satisfactory and  suicidal. 

And  where  the  railway  at  first  contracted  with  the  land-owner  to  build  the 
fence  for  them  at  a  specified  price,  but  a  controversy  arising  in  regard  to  land . 
damages,  the  commissioners  reported  a  sum  which  was  finally  confirmed  by  the 
court,  and  an  additional  sum  for  the  expense  of  building  the  fence,  and  the 
plaintiff  took  judgment  and  execution  for  this  also,  and  subsequently  built 
the  fence,  according  to  his  contract  with  the  company,  and  sued  the  company  for 
the  price,  it  was  held  that  he  could  not  recover,  the  former  judgment  having 
merged  the  contract,  and  imposed  upon  him  the  duty  to  build  the  fence,  under 
the  award  and  judgment.  It  was  also  held  that  the  land-owner  could  not  claim 
to  recover  any  thing  beyond  the  award  for  having  built  the  fence,  according  to 
the  original  contract,  which  rendered  it  more  expensive  to  him  than  it  would 
otherwise  have  been.  Curtis  v.  Vermont  Central  Railw.,  23  Vt.  613;  8.  c.  1 
Am.  liailw.  C.  258;  see  Lawton  r.  Fitchburg  Railw.,  8  Cush.  230. 

And  where  the  statute  requires  the  company  to  make  farm-crossings  where 
they  divide  land,  it  is  not  proper  for  the  jury,  in  assessing  compensation  to  the 
land-owner,  to  include  the  expense  of  a  bridge  for  the  purpose  of  a  farm-crosa- 
ing.  Philadelphia,  Wilmington,  and  Baltimore  Railw.  v.  Trimble,  4  Wharton, 
47 ;  8.  c.  2  Am.  Railw.  C.  245.  * 

In  the  case  of  Chicago  &  Rock  Island  Railw.  r.  Ward,  16  Illinois,  522,  where 
the  company  covenanted  to  maintain  fences  upon  land  intersected  by  their  road, 
and  failed  to  perform  the  covenant,  and  crops  were  destroyed,  it  was  held  the 
company  were  liable  for  the  value  of  the  crops  growing  upon  the  land  and  de- 
stroyed, as  of  the  time  when  fit  for  harvesting.  This  does  not  seem  entirely  in 
accordance  with  general  principles  upon  this  question.  The  case  professes  to  go 
upon  the  authority  of  De  Wint  v.  Wiltse,  9  Wend.  325.     But  see  §§  148,  156. 

•486 


484  FENCES.  CH.  xa.. 

road  from  the  land  adjoining  is  no  ground  for  imputing  negligence 
to  the  owner  of  the  cattle.^ 

5.  In  some  cases  in  this  country  it  has  been  held  that  tlie  rail- 
way and  the  adjoining  land-owner  are  to  defray  equal  proportions 
of  the  expense  of  maintaining  fences,  upon  the  principle  of  being 
adjoining  proprietors,  and  being  equally  interested  in  having  the 
fence  maintained,  unless  the  land-owner  chooses  to  let  his  land  lie 
in  common,  and  in  that  case  the  company  must  be  at  the  whole 
expense  of  fencing,  as  a  necessary  protection  and  security  to  their 
business^ 

'  In  the  matter  of  the  Rensselaer  &  Sar.  Railw.,  4  Paige,  653.  In  North- 
eastern Railw.  p.  Sineath,  8  Rich.  185,  it  is  held  that  damages  are  not  to  be  as- 
sessed for  fencing  through  unenclosed  land  used  for  grazing.  In  a  recent  case 
in  Kentucky,  Louisville  &  Frankfort  Railw.  v.  Milton,  14  B.  Monr.  75,  it  is 
held,  that  where  one  grants  the  right  of  building  a  railway  across  his  land,  nei- 
ther the  land-owner  nor  the  company  are  bound  to  fence  adjoining  the  railway. 
If  the  land-owner  suffer  his  cattle  to  run  at  large,  as  he  may,  if  he  choose  to  in- 
cur the  risk,  he  cannot  recover  damages  of  the  company  for  any  injury  sustained 
by  them,  unless  it  might  have  been  avoided  by  the  agents  of  the  company,  with 
due  regard  to  the  safety  of  the  train  and  its  contents.  If  such  cattle,  permitted 
to  run  at  large  upon  the  railway  track,  are  killed  accidentally  by  the  train, 
when  running  at  its  customary  speed,  the  owner  cannot  recover  of  the  com- 
pany. 

The  court  here  discountenance  the  notion  that  seems  sometimes  to  have  pre- 
vailed, that  if  the  railway  are  in  the  right  in  running  their  train,  and  especially 
where  cattle  are  trespassing  upon  the  track,  they  may  destroy  them  at  will,  with- 
out incurring  any  responsibility.  And  in  regard  to  the  case  of  New  York  & 
Erie  Railw.  ».  Skinner,  19  Penn.  State,  298,  the  court  say:  "This  court  is  not 
disposed  to  sanction  all  the  legal  doctrines  avowed  in  that  opinion." 

Railways  are  only  bound  to  the  use  of  such  diligence,  prudence,  and  skill,  to 
avoid  injury  to  cattle  rightfully  in  the  highway  at  a  road-crossing,  as  prudent 
men  exercise  in  the  conduct  of  their  own  business.  And  as  to  cattle  wrongfully 
upon  the  railway,  unless  the  injury  is  caused  wilfully,  or  through  gross  negli- 
gence, the  company  are  not  liable.  Chicago  &  Mississippi  Railw.  v.  Patchin,  16 
111.  198;  Great  Western  Railw.  r.  Thompson,  17  III.  131;  Quimby  r.  Vt. 
Central  Railw.,  23  Vt.  387  ;  Central  Mil.  Tr.  Railw.  v.  Rockafellow,  17  111.  541 ; 
Raih-oad  Co.  v.  Skinner,  19  Penn.  St.  298. 

In  a  late  case  in  New  Hampshire,  White  r.  Concord  Railway,  10  Foster,  188, 
it  was  held,  that  where  the  statute  required  railways  to  fence  and  maintain 
proper  cattle-guards,  cattle-passes,  and  farm-crossings,  for  the  convenience  and 
safety  of  the  land-owners  along  the  side  of  the  road,  provided  they  might  instead 
settle  with  the  land-owners  therefor,  and  a  railway  divides  a  pasture,  and  a 
crossing  is  made,  under  the  statute,  the  land-owner  may  let  his  cattle  run  in  the 
pasture  "  without  a  herdsman,"  and  that  the  company  will  be  liable  for  their 
destruction  while  crossing  the  track  firom  one  pasture  to  .the  other,  unless  the 


§  127.  UPON  WHOM  THE  DUTY  BESTS.  485 

*  6.  But  many  of  the  American  cases  assume  the  ground  that 
where  there  is  no  statute  imposing  the  duty  of  fencing  upon  the 

injury  was  caused  by  accident,  or  by  the  fault  of  the  owner,  or  unless  it  appear 
that  the  company  have  settled  with  the  owner  in  relation  to  such  guards,  passes, 
and  farm-crossings. 

And  it  was  held  also,  in  the  same  case,  that  where  the  plaintiff  deeded  the 
land  to  the  company  upon  condition,  "  said  corporation  to  fence  the  land  and 
prepare  a  crossing,  with  cattle-guards,  at  the  present  travelled  path,  on  a  level 
with  the  track,"  this  was  not  such  settlement,  and  did  no£  alter  the  legal  rela- 
tions of  the  parties. 

In  this  case,  both  parties  being  in  the  right,  were  bound  to  the  degree  of  pru- 
dence which  is  to  be  expected  of  prudent  men.  The  railway,  kngwing  of  the 
crossing,  and  of  the  liability  of  cattle  to  be  upon  it,  were  bound  to  keep  a  look- 
out, rather  than  the  land-owner  to  keep  some  one  constantly  upon  the  "  look- 
out." 

In  the  case  of  Long  Island  Railw.,  3  Edw.  Ch.  487,  the  Vice-Chancellor 
seems  to  consider  that  a  railway  company  have  no  interest  in  having  their  road 
fenced,  and  are  not  therefore  bound  to  contribute  to  the  expense  of  fencing, 
which  is  at  variance  with  the  opinion  of  the  Chancellor  (4  Paige,  553),  and 
equally,  as  it  seems  to  us,  with  reason  and  justice.  See  Campbell  v.  Mesier, 
4  Johns.  Ch.  334. 

In  a  case,  in  the  Supreme  Court  of  Pennsylvania,  Sullivan  r.  Fhila.  &  R.  Railw., 
6  Am.  Law  Reg.  342,  8.  c.  30  Penn.  St.  234,  the  subject  of  the  duty  of  railway 
companies  to  fence  their  roads  for  the  security  of  passengers  is  discussed,  and,  as 
it  seems  to  us,  many  sensible  and  practical  suggestions  made.  The  general  and 
correlative  duties  of  passenger  carriers  and  their  passengers  are  thus  stated :  — 

•'  The  carrier's  contract  with  his  passenger  implies :  first,  that  the  latter  shall 
obey  the  former's  reasonable  regulations ;  second,  that  the  carrier  shall  have  his 
means  of  transportation  complete  and  in  order,  and  his  servants  competent. 

"  If  a  passenger  be  hurt  without  his  own  fault,  this  fact  raises  a  presumption 
of  negligence,  and  casts  the  onus  on  the  carrier. 

"  This  being  a  presumption  of  fact,  it  is  for  the  jury  to  determine. 

"  It  is  no  answer  to  an  action  by  a  passenger  against  a  carrier,  that  the  injury 
was  caused  by  the  negligence  or  even  trespass  of  a  third  person.  The  parties 
are  bound  by  their  contract." 

Post,  §  176,  n.  6 ;  §  189. 

Woodward,  J. :  "  Whether  that  spot  in  the  road  was  not  so  commonly  infested 
with  cows  as  to  require  a  fence  or  cattle-guard  of  some  sort ;  whether  the  speed 
of  the  cars  was  not  too  great  for  a  curve,  exposed  at  all  times  to  the  incursions 
of  cattle ;  whether  the  engineer  discovered  the  cow  as  soon  as  he  might,  and 
used  his  best  endeavors  to  avert  the  collision ;  in  a  word,  whether  the  accident 
was  such  as  no  foresight  on  the  part  of  the  company  or  its  servants  could  have 
prevented ;  these  were  questions,  and  grave  ones,  too,  that  ought  to  have  been 
submitted  to  the  jury. 

"The  learned  jndge,  after  stating  correctly  the  extreme  care  and  vigilance 
which  the  law  exacts  of  railroad  companies,  asks  if  they  are  required  to  provide 
suitable  fences  and  guards  to  keep  cattle  off  the  road.    In  answering  his  queo- 

•487 


486  FENCES.  CH.   XIX. 

*  company,  and  no  stipulation,  express  or  implied,  between  the 
company  and  the  land-owners  that  they  shall  maintain  fences, 

tion  in  the  negative,  the  judge  seems  to  have  misapplied  the  reasoning  of  Judge 
Gibson  in  Skinner's  case,  7  Harris,  298 ;  1  Amer.  Law  Reg.  97.  That  was  an 
action,  by  the  owner  of  a  cow  killed  on  a  railroad,  to  recover  her  value  from  the 
company ;  and  the  doctrine  laid  down  was  that  the  owner  was  a  wrong-doer  in 
suffering  his  cow  to  wander  on  a  road  engaged  in  transporting  passengers,  and 
was  rather  liable  for  damages  than  entitled  to  recover  them.  The  owner  of  the 
cow  could  not  insist  that  the  company  should  fence  their  road  for  the  protection 
of  his  stock.  It  was  his  business  to  keep  his  cattle  within  his  own  bounds.  Now, 
such  reasoning  between  a  railway  company  and  a  trespasser  commends  itself  to 
every  man's  understanding,  because  it  tends  to  the  security  of  the  passenger.  If 
farmers  cannot  make  companies  pay  for  injuring  cattle,  but  they  involve  them- 
selves in  liability  for  suffering  their  cattle  to  run  at  large,  passengers  are  all  the 
more  secure  from  this  kind  of  obstruction. 

"But  when,  notwithstanding  this  strong  motive  for  keeping  cattle  off  the 
road,  a  cow  is  found  there,  and  causes  an  injury  to  a  passenger  whom  the  com- 
pany have  undertaken  to  carry  safely,  is  it  an  answer  to  the  passenger  suing  for 
damages  that  the  owner  of  the  cow  had  no  right  to  let  her  run  at  large  ?  Grant 
that  she  was  unlawfully  at  large,  and  grant  the  owner  is  bound  to  indemnify  the 
company  for  the  mischief  she  caused,  yet  as  between  the  company  and  its  pas- 
senger, liability  is  to  be  measured  by  the  terms  of  their  contract. 

"  Having  undertaken  to  carry  safely,  and  holding  themselves  out  to  the  world 
as  able  to  do  so,  they  are  not  to  suffer  cows  to  endanger  the  life  of  the  passen- 
ger any  more  than  a  defective  rail  or  axle.  Whether  they  maintain  an  armed 
police  at  cross-roads,  as  is  done  by  similar  companies  in  Europe ;  or  fence,  or 
place  cattle-guards  within  the  bed  of  their  road,  or  by  other  contrivance  exclude 
this  risk,  is  for  themselves  to  consider  and  determine.  We  do  not  say  they  are 
bound  to  do  the  one  or  the  other,  but  if,  by  some  means,  they  do  not  exclude  the 
risk,  they  are  bound  to  respond  in  damages  when  injur)-  accrues. 

"  Perhaps  the  passenger  would  have  his  remedy  against  the  owner  of  the  cow; 
it  is  clear,  from  Skinner's  case,  that  the  company  would,  but  the  passenger  has 
unquestionably  a  remedy  against  the  company.  If  he  be  injured  by  reason  of 
defective  machinery,  nobody  would  think  of  setting  up  the  liability  of  the 
mechanic  who  fiimished  the  bad  work,  as  a  defence  for  the  company  against  the 
claim  of  the  passenger.  Yet  it  would  be  a  defence  exactly  analogous  to  that 
which  satisfied  the  court  in  this  case.  We  do  not  wish  to  be  understood  as  lay- 
ing down  a  general  rule,  that  all  railroad  companies  are  bound,  independently 
of  legislative  enactment,  to  fence  their  roads  from  end  to  end,  but  we  do  insist 
that  they  are  bound  to  carry  passengers  safely,  or  to  compensate  them  in  dam- 
ages. If  a  road  runs  through  a  farmer's  pasture  grounds,  where  his  cattle  are 
wont  to  be,  possibly  as  between  the  company  and  the  farmer  the  latter  may  be 
bound  to  fence,  but  as  between  the  company  and  the  passenger  the  company  are 
bound  to  see  that  the  cattle  are  fenced  out.  If  cattle  are  accustomed  to  wander 
on  unenclosed  grounds,  through  which  the  road  runs,  the  company  are  bound  to 
take  notice  of  this  fact,  and  either  by  fencing  in  their  traqk,  or  by  enforcing  the 
owner's  obligation  to  keep  his  cattle  at  home,  or  by  moderating  the  speed  of  the 
•488 


§  127.  UPON  WHOM   THE  DUTY  BESTS.  487 

*  they  are  not  bound  to  do  so,  but  the  common-law  duty  of  keep- 
ing one's  cattle  at  home  rests  upon  the  land-owner.^  And  this 
view  is  probably  consistent,  in  principle,  with  the  cases  wliere 
such  a  duty  is  held  to  result  from  the  appraisal  of  land-damages, 
subject  to  the  expense  of  building  fences  being  borne  by  the 
company,  or  where  the  assessment  specifically  includes  the  ex- 
pense of  fencing,  and  that  has  not  been  paid. 

And  in  the  Irish  courts  the  company  is  only  bound  to  erect 
such  accommodation  works  for  the  benefit  of  the  land-owners  as 
are  a  compliance  with  the  specifications  in  the  award.  This  is 
true  even  where  the  railway  crosses  a  private  road  over  a  farm 
in  the  right  of  some  third  party  as  lessee  of  the  farm  obliquely, 

*  and  the  award  adjudicating  the  claim  of  such  lessee  specified 
only  a  crossing  over  the  railway  as  a  "  level  crossing  "  at  a  given 
point,  and  the  company  gave  a  crossing  at  right  angles  with  the 
road,  which  did  not  connect  the  termini  of  the  road,  and  gave 
no  access  to  it ;  it  was  nevertheless  held  that  this  was  a  compli- 
ance with  the  award.*  This  is  certainly  not  a  fair  construction 
of  the  award,  as  applicable  to  the  subject-matter ;  and  it  does 
not  require  any  gift  of  prophecy  to  foretell  that  the  doctrine  of 

train,  or  in  some  other  manner,  to  secure  the  safety  of  the  passenger.  That  is 
their  paramount  duty.  To  enable  them  to  perform  it  the  law  entitles  them  to  a 
clear  track.     7  Harris,  298 ;  12  id.  496." 

«  Hurd  c.  Rut.  &  Bur.  Railw.,  25  Vt.  116,  123;  New  York  &  Erie  Railw.  ». 
Skinner,  19  Penn.  St.  298;  Clark  v.  Syra.  &  Utica  Railw.,  11  Barb.  112;  Dean 
r.  The  Sullivan  Railw.,  2  Foster,  316;  A.  &  S.  Railw,  p.  Baugh,  14  111.  211. 
Where,  upon  appeal  from  the  first  appraisal  of  land  damages,  where  the  erection 
of  fences  had  been  specified,  that  was  vacated,  and  the  new  appraisal  made  no 
such  requirement  of  the  company,  it  was  held  that  the  presumption  was,  that  the 
whole  damages  were  appraised  in  money,  and  the  company  were  not  bound  to 
buikl  fences.  Morss  r.  Boston  &  Maine  Railw.,  2  Cush.  633  ;  Williams  v.  New 
York  Central  Railw.,  18  Barb.  222.  It  seems  impossible  to  estimate  damages 
for  taking  land  for  the  use  of  a  railway,  without  taking  into  the  account  the  ex- 
pense of  fencing.  Henry  r.  Pacific  Railw.,  2  Clarke,  228;  Mil.  &  Mis.  Railw. 
p.  Eble,  4  Chandler  (Wis.),  72;  Northeastern  Railw.  p.  Sineath,  8  Rich.  186; 
Matter  of  Rense.  &  Sar.  Railw.,  4  Paige,  533.  And  those  cases  which  hold  the 
company  not  bound  to  fence,  unless  required  to  do  so  by  statute  or  contract,  go 
upon  the  presumption  that  they  have  already  paid  the  expense  of  fencing  in 
the  land  damages.  See  Baltimore  &  Ohio  Railw.  p.  Lambom,  12  Md.  267; 
Mad.  &  Ind.  Railw.  p.  Kane,  11  Ind.  375;  Stucke  p.  Milw.  &  Miss.  R.  Co.,  9 
Wise.  202;  Richards  p.  Sacramento  Valley  R.  Co.,  18  Cal.  361. 

'  Mann  r.  Great  Southern  &  Western  R.,  9  Irish  Com.  Law  R.  106. 

•  489,  490 


488  FENCES.  CH.  XIX. 

the  case  will  not  be  followed  in  this  country,  and,  with  deference 
be  it  said,  it  ought  not  to  be  followed  anywhere. 

7.  And  in  some  of  the  states  the  rule  of  the  common  law,  in 
regard  to  the  duty  resting  upon  the  owner  of  domestic  animals 
to  restrain  them,  has  not  been  adopted  so  as  to  charge  the  owner 
with  negligence  for  suffering  them  to  go  at  large. ^^ 

8.  But  it  is  held,  that  where  the  statute  imposes  upon  the 
company  the  duty  of  maintaining  fences  and  cattle-guards  at 
farm-crossings,  and  provides  that  until  such  fences  and  cattle- 
guards  shall  be  duly  made  the  corporation  and  its  agents  shall 
be  liable  for  all  damages  from  such  defect,  this  renders  a  lessee 
of  the  road  liable  for  injury  to  cattle  caused  by  his  operating  it 
without  proper  cattle-guards  at  farm-crossings.^^ 

*  9.  A  general  statute,  requiring  fences  to  be  maintained  by 
railways  upon  the  sides  of  their  road,  applies  to  land  acquired 
by  purchase  as  well  as  to  that  taken  in  invitum.^ 

'"  Kerwhacker  v.  C.  C.  &  Cincinnati  Railw.,  3  Ohio  N.  S.  172.  In  such  cases 
the  company  are  bound  to  use  reasonable  care  not  to  injure  animals  thus  right- 
fully at  large.  lb. ;  C.  C.  &  Cincinnati  Railw.  v.  Elliott,  4  Ohio  N.  S.  474.  If  the 
owner  is  to  be  charged  with  remote  negligence  in  suffering  his  cattle  to  go  at 
large,  under  such  circumstances,  and  the  servants  of  the  company  are  guilty  of 
want  of  care  at  the  time  of  the  injury,  which  is  the  proximate  cause  of  it,  the 
company  are  still  liable.  lb. ;  Chicago  &  Miss.  Railw.  r.  Patchin,  16  111.  198 ; 
Ind.,  &e.  Railw.  v.  Caldwell,  9  Ind.  397. 

"  Clement  v.  Canfield,  28  Yt.  302.  And  the  same  rule  applies  to  a  company 
running  its  cars  over  another  company's  line  by  arrangement  between  the  com- 
panies. If  the  road  is  not  properly  fenced,  the  company  running  the  trains  by 
which  the  damage  is  caused  will  be  responsible,  although  it  be  the  default  of  the 
other  company,  for  which  that  is  also  responsible  to  the  party  injured.  Illinois 
Central  Railw.  v.  Kanouse,  39  111.  272.  An  order  upon  a  railway  for  making 
farm  accommodations  must  specify  the  time  within  which  they  shall  be  made. 
Keith  V.  The  Cheshire  Railw.,  1  Gray,  614.  And  where  the  act  allowing  a  rail- 
way company  to  lease  its  road  is  upon  the  express  condition  that  it  be  not 
thereby  exonerated  from  any  of  its  duties  or  liabilities,  this  must  include  the 
maintaining  offences.  Whitney  ».  Atl.  &  St.  Law.  Railw.,  44  Maine,  362. 
Where  a  railway  company  permits  its  cattle-guards  to  remain  filled  with  snow, 
so  that  cattle  which  have  strayed  upon  the  highway  without  any  negligence  on 
the  part  of  the  owner  pass  over  such  guards,  and  in  consequence  are  injured  by 
a  passing  train,  the  company  are  liable  for  the  damages.  Donnigon  v.  Ch.  & 
N.  W.  Railw.  Co.,  18  Wise.  28. 

"  Clarke  v.  The  Rochester,  L.  &  N.  F.  Railw.,  18  Barb.  850.  A  fence  built 
in  zigzag  form  of  rails,  half  the  length  upon  the  land  taken  for  the  railway,  and 
half  upon  the  land  of  the  adjoining  proprietor,  is  a  compliance  with  the  statute 
*  491 


§  127.  UPON  WHOM   THE  DUTY  RESTS.  489 

10.  And  the  statute,  requiring  farm-crossings  "  for  the  use  of 
proprietors  of  land  adjoining,"  has  no  reference  to  the  quantity 
of  land  to  be  accommodated,  but  only  that  the  crossing  must  be 
useful.^^ 

11.  Where  the  statute  requires  the  company  to  erect,  at  farm- 
crossings,  bars  or  gates,  to  prevent  cattle,  Ac,  from  getting  upon 
the  railway,  and  the  land-owner  who  is  entitled  to  such  protec- 
tion refuses  to  have  such  bars  or  gates  erected,  or  requests  the 
company  not  to  erect  them,  or  undertakes  to  erect  them  himself, 
he  cannot  maintain  an  action  against  the  company  for  not  com- 
plying with   the   statute.^    A  court  of    equity   will   not  decree 

requiring  the  fence  to  be  built  upon  the  side  of  the  road.  Ferris  r.  Van  Bus- 
kirk,  18  Barb.  397.  And  where  the  statute  provides  that,  upon  certain  pro- 
ceedings, railway  companies  may  be  compelled  to  provide  farm-crossings  and 
cattle-passes  for  the  owners  of  land  intersected  by  the  company's  road,  and  no 
such  proceediufrs  have  been  taken,  the  company  are  not  liable  to  an  action  for 
damages  resulting  from  the  want  of  necessary  farm-crossings  and  cattle  passes, 
unless  it  appears  that  the  company  had  contracted  to  build  them.  Horn  v.  At- 
lantic &  St.  Lawrence  Railw.,  35  N.  H.  169 ;  8.  c.  36  id.  440.  Where  the  rail- 
way company  contract  to  build  fences  and  farm-crossings,  this  obliges  them  to 
erect  bars  or  gates  at  such  crossings,  as  required  by  statute.  Poler  v.  N.  Y. 
Central  Railw.,  16  N.  Y.  Court  of  Appeal,  476. 

"  Tombs  V.  Rochester  &  Syracuse  Railw.,  IS  Barb.  583.  But  where  the 
statute  requires  the  commissioners  to  prescribe  the  •*  time  when  such  works  are 
to  be  made,"  and  the  owner  has  the  right,  by  statute,  to  recover  double  damages, 
*'  by  reason  of  failure  to  erect  the  works,"  and  the  commissioners  failed  to  pre- 
serihe  the  time,  no  action  will  lie.  Keith  r.  Cheshire  Railw.,  1  Gray,  614.  When 
the  statute  requires  fences  to  be  maintained  by  railway  companies,  it  must  be 
done  before  they  begin  running  trains.  Clark  r.  Vermont  &  Canada  Railw., 
28  Vt.  103.  And  in  Gardiner  p.  Smith,  7  Mich.  410,  it  was  held  to  attach  as 
soon  as  the  company  have  possession  of  the  land  for  construction.  Since  the  de- 
cision of  the  case  of  Clark  r.  Vt.  &  Canada  R.,  supra,  the  same  court  held,  that 
during  the  construction  of  a  railway  the  company,  in  such  case,  were  bound, 
either  by  fences  or  other  sufhcient  means,  to  protect  the  fields  of  land-owners 
adjoining  the  railway.  And  whether  the  company  have  used  the  proper  pre- 
cautions to  prevent  the  escape  of  the  land-owners  cattle  or  the  intrusion  of  other 
cattle,  during  such  construction,  is  a  question  of  fact,  in  each  particular  case  to 
be  determined  by  the  jury.  "WTiere  the  contractor  for  building  a  railway  took 
away  the  fences  in  course  of  construction,  and  the  sheep  of  the  land-owner 
escaped  thereby  and  were  lost,  he  was  held  responsible  for  the  loss.  Gardiner 
V.  Smith,  7  Mich.  410.  And  it  will  make  no  difference  that  the  land-owner 
tunied  the  sheep  into  the  lot  after  the  land  was  taken  possession  of  by  the  con- 
tractor, and  he  was  constantly  throwing  down  the  fences  to  carrj'  forward  the 
work.  lb.  Ilolden  r.  Rut.  &  Bur.  Railw.,  30  Vt.  297.  But  a  railway  com- 
pany cannot  fence  their  road  by  means  of  willows  set  upon  the  line  of  the  land 


490  FENCES.  CH.  XK. 

specific  performance  of  a  covenant  by  a  railway  company  to  main- 
tain and  keep  in  repair  the  cattle-guards  on  the  line  of  plaintiffs 
land."  Nor  will  the  court  of  chancery,  upon  any  general  right, 
direct  that  farm-crossings,  agreed  to  be  built  by  a  railway  company, 
shall  be  made  under  its  direction,  or  at  its  discretion.^^ 

*  12.  Railways  are  not  bound  to  maintain  fences  upon  their 
roads  so  as  to  make  them  liable  to  their  own  servants  for  injuries 
happening  in  consequence  of  the  want  of  such  fences.  And 
where  the  statute  makes  them  liable  for  all  injuries  done  to 
cattle,  &c.,  by  their  agents  or  instruments  until  they  fence 
their  road,  the  liability  extends  only  to  the  owners  of  such  cattle 
or  other  animals,  and  this  liability  is  the  only  one  incurred.^^ 

13.  Where  the  statute  makes  railways  liable  for  cattle  killed 
by  them  without  reference  to  their  negligence,  all  that  is  neces- 
sary to  entitle  the  party  to  recover  is  to  show  the  fact  that  the 
cattle  were  killed  by  the  company  and  that  he  was  the  owner.'' 

14.  And  where  it  is  the  duty  of  the  company  to  fence  the 
land  adjoining  their  road,  and  they  omit  to  do  so,  whereby  cat- 
tle escape  upon  the  track  and  are  killed,  they  are  liable  in  dam- 
ages without  any  proof  of  care  on  the  part  of  the  owner  to  restrain 
them.^^  And  evidence  of  notice  to  the  owner  that  the  animal  had 
escaped  two  or  three  times  before  and  had  been  upon  the  track, 
is  inmaterial.^^  But  where  the  duty  of  maintaining  fences 
is  upon  the  land-owner,  and    cattle  escape  and  are  killed  *  upon 

taken,  and  which  in  growing  will  injure  the  adjoining  land  by  the  extension  of 
their  roots,  there  being  no  controlling  necessity  of  fencing  in  that  mode. 
The  company  were  accordingly  enjoined.  Brock  v.  Conn.  &  Pass.  R.,  35 
Vt.  373. 

"  Columbus  &  Shelby  Railw.  v.  Watson,  26  Ind.  50. 

"  Damley  v.  London,  Chatham  &  Dover  RaUw.,  Law.  Rep.  2  H.  Lds.  43. 

'*  Langlois  v.  Buffalo  &  Rochester  Railw.,  19  Barb.  364.  But  in  McMillan 
r.  Saratoga  &  Wash.,  20  Barb.  449,  it  is  conceded  the  company  would  have 
been  liable  to  the  representative  of  their  engineer,  who  was  killed  by  the  train 
running  upon  cattle  which  came  upon  the  track  through  defect  of  fences,  which 
it  was  the  duty  of  the  company  to  maintain,  if  they  had  been  shown  to  have  had 
actual  knowledge  of  such  defect  before  the  injury.     See  post,  §  181. 

"  Nashville  &  Ch.  Railw.  v.  Peacock,  25  Alabama,  229.  See  also  Williams 
r.  New  Albany  &  Salem  Railw.,  5  Ind.  Ill ;  Lafayette  &  Ind.  Railw.  v.  Shriner, 
6  Ind.  141.  In  this  case  it  was  held,  that  such  a  statute  had  no  reference  to 
the  case  of  cattle  killed  at  a  road-crossing,  as  that  was  a  place  which  could 
not  be  protected  either  by  fences  or  cattle-guards. 

"  Rogers  r.  Newburyport  Railw.,  1  Allen,  16. 
*  492,  493 


§  127.  UPON  WHOM   THE   DUTY   RESTS.  491 

the  track,  the  company  are  not  liable  without  proof  of  due  care  on 
the  part  of  the  owner  to  restrain  them.'^  The  statute,  requiring 
railways  thereafter  constructed  to  fence  their  roads  on  both  sides, 
does  not  apply  to  a  road  in  the  process  of  construction  at  the 
date  of  the  act.^® 

The  statute,  requiring  railways  to  fence  their  roads,  and  mak- 
ing them  liable  for  injury  to  cattle  without  regard  to  the  negli- 
gence of  the  owner,  or  his  being  an  owner  of  adjoining  land,  is 
a  police  regulation. ^^  But  this  liability  does  not  extend  to  ani- 
mals injured  by  fright.*^ 

15.  Railway  companies  are  not  liable  for  injuries  to  animals 
at  highway  crossings,  although  the  crossing  had  been  abandoned 
by  the  public  for  two  years  and  the  highway  changed,  it  not 
appearing  to  have  been  vacated  in  the  mode  prescribed  by 
statute,  so  as  to  justify  the  company  in  fencing  their  track 
across  it.^ 

16.  Railway  companies  in  England  are  not  held  responsible 
for  injuries  to  cattle  transported  to  their  stations,  in  consequence 
of  injury  by  escaping  upon  the  track  through  defects  of  the  fence 
about  the  cattle-yard ;  nor  for  the  cattle  being  frightened  by  one 
of  the  porters  of  the  company  coming  out  of  the  station  into  the 
cattle-yard,  having  a  lantern,  such  as  was  ordinarily  used,  in 
his  hand ;  it  being  no  evidence  of  negligence  on  the  part  of  the 
company's  servants.^  It  was  considered  here  that  the  cattle 
had  been  delivered  to  the  plaintiff,  and  it  was  his  fault,  since  he 
knew  the  yard  was  not  fenced,  and  had  himself  pronounced  it 
an  unsafe  place,  not  to  guard  against  their  escape. 

17.  It  appeared  in  one  case  ^  that  the  plaintiff's  horse  had  es- 

"  Stearns  r.  Old  Colony  &  Fall  River  Railw,,  1  Allen,  493. 

•^  Indianapolis  &  C.  Railw.  v.  Townsend,  10  Ind.  38;  Jefferson  Railw.  v. 
Applegate,  id,  49 ;  Ind.  &  C.  R.  r.  Meek,  id.  602 ;  Jeff.  Railw.  v.  Dougherty, 
id.  549. 

"  Peru  Railw.  p.  Haskett,  10  Ind.  409.  And  the  company  are  not  liable  for 
cattle  killed  in  the  highway  without  their  fault,  where  the  track  of  the  road  was 
fully  fenced.     Northern  Ind.  R,  c.  Martin,  10  Ind.  460. 

**  Indian.  Railw.  v.  Gapen,  10  Ind.  292. 

"  Roberts  t.  Great  Western  Railw.,  4  C.  B.  (N.  S.)  606. 

**  Ilolden  r.  Rutland  &  Burlington  Railw.,  30  Vt.  297.  WTiere  the  plaintiff 
had  knowledge  at  evening  that  his  fence  was  in  danger  of  being  carried  off  by  a 
flood,  and  knew  his  cattle  would  in  consequence  be  liable  to  come  u|K)n  the  rail- 
way track,  and  refused  to  remove  them  from  the  pasture,  and  before  morning 
the  fence  was  removed,  and  the  cattle  came  upon  the  track  and  were  killed  by  a 


492  FENCES.  CH.  XIX. 

caped  *  in  the  night-time  from  his  pasture  upon  the  railway  track 
on  account  of  the  want  of  proper  fence  along  the  line  of  the 
road,  and  was  found  in  the  morning  a  mile  from  the  plaintiff's 
land  in  a  rocky  pasture  seriously  injured  in  the  leg ;  and  there 
was  some  evidence  tending  to  show  that  the  injury  was  received 
in  tlie  pasture  where  he  was  found.  The  court  charged  the 
jury  that  if  they  were  satisfied  there  was  a  clear  connection  be- 
tween the  escape  of  the  horse  and  the  injury  received,  the  plain- 
tiff was  entitled  to  recover.  This  was  held  erroneous  in  not  re- 
quiring the  jury  to  discriminate  between  a  direct  and  a  remote 
connection  between  the  neglect  of  the  company  and  the  damage 
to  the  plaintiff's  horse,  as  he  could  only  recover  upon  the  for- 
mer ground. 

18.  In  this  case^  the  plaintiff's  cows  were  killed  by  escaping 
from  the  plaintiff's  pasture,  and  going  into  a  piece  of  land  leased 
by  the  plaintiff  to  the  defendants,  to  be  used  by  them  as  a  wood- 
yard,  and  from  that  upon  the  defendants'  track,  for  want  of  fence 
about  the  wood-yard.  The  evidence  left  it  doubtful  whether  the 
defendants  were  to  have  the  exclusive  occupancy  of  the  wood- 
yard,  or  were  to  fence  the  same,  as  between  them  and  the  plain- 
tiff: It  was  held  that,  in  order  to  recover  of  the  defendants  for 
killing  the  cows,  it  should  be  found  by  the  jury  that  it  was  the 
duty  of  the  defendants  to  maintain  the  fence  for  defect  of  which 
they  escaped  upon  the  defendants'  track. 

19.  The  statute  of  New  York,  requiring  railways  to  maintain 
cattle-guards  at  road-crossings,  applies  to  streets  in  a  village,  but 
not  so  as  to  impede  the  passage  along  the  streets,  or  render  them 
unsafe  for  persons  passing.^^ 

*  20.  It  has  often  been  declared  that  railway  companies,  to  relieve 
themselves  from  responsibility  for  damage  caused  by  their  trains 
to  domestic  animals,  must  not  only  build  but  maintain  in  good 

passing  train,  it  was  held  the  plaintiflF  could  not  recover.  Michigan,  &c.,  R.  Co. 
V.  Shannon,  13  Ind.  171.  There  are  numerous  cases  in  tliis  state  where  mat- 
tiTS  of  practice  under  the  statute  of  that  state  are  discussed.  Wright  v.  Gos- 
sett,  15  Ind.  119;  Ind.,  &c.  Railw.  v.  Fisher,  id.  203;  Same  v.  Kercheval,  16 
id.  84 ;  Ohio  &  Miss.  Railw.  Co.  v.  Quier,  id.  440.  See  also  19  id.  42 ;  20  id. 
229 ;  23  id.  438 ;  24  id.  139.  And  it  has  been  held  that  all  animals  killed  at  one 
time  constitute  a  separate  and  indivisible  cause  of  action,  and  two  of  these  can- 
not be  united  to  give  jurisdiction  to  the  Circuit  Court.  Ind.  &  Cin.  R.  Co.  v. 
Kercheval,  24  Ind.  139. 

^  Brace  V.  N.  Y.  Central  RaUw.  Co.,  27  N.  Y.  269. 
♦  494,  495 


§  127.  tJPON  WHOM  THE   DUTY   RESTS.  493 

repair  all  fences  and  cattle-guards  required  of  them  by  law.^^ 
If  such  structures  are  allowed  to  fall  into  decay,  or  are  acciden- 
tally thrown  open  or  thrown  down,  and  not  closed  and  restored 
within  a  reasonable  time,  the  company  are  responsible  to  the 
owner  of  cattle  injured  by  such  neglect,  provided  he  is  not  in  fault 
himself.'-*^  But  even  where  such  fences  and  cattle-guards  are 
properly  maintained,  the  railway  companies  will  be  held  responsi- 
ble for  all  damage  to  animals  caused  by  the  wilful  or  negligent 
conduct  of  their  agents  and  employees. 

21.  In  New  Hampshire  the  common-law  rule  of  responsibility  for 
damage  only  as  to  cattle  rightfully  in  the  adjoining  fields  is  main- 
tained in  regard  to  the  duty  of  railway  companies  to  fence  their 
track,  and  an  omission  of  this  duty  will  not  render  them  responsi- 
ble for  an  injury  happening  to  cattle  trespassing  upon  the  track  or 
upon  the  lands  adjoining.^  It  is  here  held  that  railway  compa- 
nies are  not  responsible  to  the  owner  of  lands  adjoining  their  track 
for  damage  done  upon  such  lands  by  cattle  suffered  by  their  own- 
ers to  run  at  large  in  the  highway,  and  thence  escaping  upon  the 
railway  track,  and  thus  coming  upon  such  adjoining  lands,  through 
defect  of  fences,  which  it  is  the  duty  of  the  company  to  maintain. 
But  this  seems  questionable.  We  should  have  said,  without 
much  examination  or  reflection,  that  although  the  owners  of  the 
cattle  are  clearly  responsible  for  all  such  damage,  it  is  not  quite 
certain  the  company  may  not  also  be  held  responsible  for  the  same 
damage  to  the  land-owner,  inasmuch  as  the  law  casts  upon  them 
the  duty  of  maintaining  the  fences  against  the  land,  and  the 
damage  occurred  in  consequence  of  the  omission.  But  the  court 
unquestionably  took  the  surest  course  to  visit  the  responsibility,  in 
the  first  instance,  where  it  ultimately  belongs.  It  is  here  further 
said  diat  railways  are  bound  to  maintain  proper  cattle-guards  at 
farm-crossings,  and  are  responsible  for  all  damages  to  cattle  right- 
fully there  by  such  omission,  but  are  not  responsible  for  any  injury 
to  cattle  suffered  *  to  go  at  large  in  the  highway,  or  wrongfully  there 
for  any  cause,  although  such  injury  may  occur  by  reason  of  the 
omission  to  build  and  maintain  such  cattle-guards.^ 

22.  A  railway  company  are  responsible  for  all  damage  done  to 
cattle  rightfully  in  lands  adjoining  the  railway  track  through  de- 

»  McDoweU  t.  N.  Y.  Central  RaUw.,  87  Barb.  196. 
"  Chapin  v.  Sullivan  Railw.  Co.,  89  N.  H.  68. 
"  Fost,  §  128,  pi.  7. 

•496 


494  FENCES.  CH.  XIX. 

feet  of  fences  which  the  company  are  bound  to  maintain  ;  and 
they  cannot  excuse  themselves  from  responsibility  by  showing 
that  the  road  is  operated  for  the  benefit  of  other  parties,  and 
especially  so  long  as  it  is  done  under  the  direction  and  control 
of  the  company.^ 

23.  The  building  of  fences  along  the  line  of  a  railway  track  is, 
no  doubt,  in  regard  to  the  security  of  travel  thereon,  to  be  regarded 
as  a  matter  of  police,  and  a  duty  which  the  companies  cannot  shift 
upon  others  by  contracts  to  maintain  such  fences.*^  And  it  makes 
no  difference  by  whom  such  fences  were  built,  —  the  company  is 
bound  to  maintain  them  in  good  condition  at  all  times.^^ 

24.  A  land-owner,  who  by  contract  with  the  company  is  bound 
to  maintain  the  fences  through  his  land,  cannot  recover  of  the 
company  for  damage  to  cattle  by  reason  of  defect  of  fences,  unless 
he  show  negligence  on  the  part  of  the  company.^  But  a  railway 
company  is  responsible  for  cattle  killed  by  their  trains  at  a  mere 
private  road-crossing,  which  was  not,  but  might  have  been,  easily 
fenced  by  them.^  This  case  was  controlled  by  the  statute.  A 
sufficient  fence  in  Indiana  is  held  to  be  such  an  one  as  good  hus- 
bandmen usually  keep.^*  But  in  many  of  the  states  what  shall 
constitute  legal  fences  is  defined  by  statute. 

25.  Railway  companies  are  not  responsible  for  damage  accruing 
to  domestic  animals  from  want  of  fences,  at  points  which  do  not 
properly  admit  of  being  fenced,  as  in  the  immediate  vicinity  *  of  en- 
gine-houses, machine-shops,  car-houses  and  wood-yards. ^'^  And 
where  the  fence  along  a  railway  line  is  destroyed  by  unavoid- 
able accident,  as  by  fire,  and  is  repaired  in  a  reasonable  time,  but 
in  the  mean  time  cattle  get  at  large  by  reason  of  the  want  of 
fence,  and  are  injured,  the  company  will  not  be  held  responsible.^ 

26.  By  statute  in  this  state  railway  companies  are  made  respon- 

»  Wyman  r.  Pen.  &  Ken.  R.  Co.,  46  Me.  162. 

^  New  Albany  &  Salem  R  Co.  v.  TQton,  12  Ind.  3 ;  Same  v.  Maiden,  id.  10. 
See  also  Illinois  Central  R.  Co.  v.  Swearingen,  33  111.  389. 

^'  New  Albany,  &c.  Railw.  Co.  ».  Pace,  13  Ind.  411. 

3«  Terre  Haute,  &c.  R.  Co.  v.  Smith,  16  Ind.  102. 

^  Ind,  Central  Railw.  v.  Leamon,  18  Ind.  173. 

^  Toledo  &  Wabash  Railw.  Co.  v.  Thomas,  18  Ind.  215.  If  such  a  fence  is 
maintained,  the  company  is  only  liable  as  at  common  law  for  negligence, 

^  Ind.  &  Cin.  Railw.  Co.  ».  Oestel,  20  Ind.  231 ;  Galena  &  Chicago  Union 
R.  Co.  V.  Griffin,  31  111.  303. 

^  Toledo  &  Wabash  R.  Co.  v.  Daniels,  21  Ind.  266 ;  Ind.,  Pitta.  &  Qev.  R. 
Co.  r.  Truitt,  24  id.  162. 
*497 


§  127.  UPON  WHOM  THE   DUTY   BE8TB.  495 

sible  for  animals,  but  not  for  persons,  injured  upon  their  roads, 
when  they  might  be,  but  are  not  fenced,  irrespective  of  the  ques- 
tion of  negligence.  But  when  a  proper  fence  is  maintained  in  all 
places  where  it  is  required  to  be,  the  company  are  not  responsible 
for  animals  injured  except,  as  at  common  law,  where  there  is  neg- 
ligence on  their  part  conducing  to  the  result,  and  none  on  the 
part  of  the  owner  of  that  character.^ 

27.  The  requirements  of  railway  companies  as  to  fencing  their 
road  are  not  intended  chiefly  for  the  protection  of  domestic  ani- 
mals, but  for  the  security  of  travel  and  transportation,  and  where 
the  fence  is  thrown  down  by  third  persons  without  the  knowledge 
of  the  company  that  it  is  down,  and  cattle  stray  upon  the  track  and 
receive  injury,  the  company  is  not  responsible  for  the  damage.^ 

28.  Where  the  plaintiff  is  guilty  of  negligence  which  immediately 
and  directly  contributes  to  the  injury  of  cattle,  he  caunot  recover 
of  a  railway  company  unless  by  the  exercise  of  ordinary  care  and 
prudence  at  the  time  the  company  might  have  avoided  inflicting 
the  injury.® 

29.  Where  the  railway  company  stipulated  with  an  adjoining 
land-owner  to  construct  five  "  cowpits  "  or  cattle-guards  upon  his 
land,  but  did  it  in  so  imperfect  a  manner  as  to  be  of  no  value,  and 
the  land-owner  brought  suit  for  the  breach  of  contract,  it  was  held 
he  could  only  recover  such  damage  as  he  had  *  sustained  up  to  the 
time  of  bringing  the  action,  unless  where  he  had  himself  con- 
structed the  cattle-guards  in  a  proper  manner,  when  he  might  also 
recover  the  expense  of  such  construction.*^ 

30.  Where  bars  are  erected  at  a  farm-crossing  at  the  request  of 
the  land-owner,  it  is  his  duty  to  keep  them  up  ;  and  if  he  fails  to 
do  so,  whereby  his  own  cattle  or  those  of  third  persons  straying 
into  his  field  get  upon  the  track  and  are  injured,  the  owners  of 
such  cattle  cannot  recover  of  the  company  if  guilty  of  no  default  at 
the  time  of  the  injury.*^ 

"  Thayer  p.  St.  Louis,  Alton,  &c.  Railw.  Co.,  22  Ind.  26 ;  McKinley  t.  Ohio, 
&c.  Railw.  Co.,  id.  99,  where  it  is  held  it  will  make  no  difference  as  to  the  re- 
sponsibility of  the  company  that  the  road  is  operated  by  a  receiver. 

»  Toledo,  &c.  Railw.  r.  Fowler,  22  Ind.  316. 

»  Ind.  &c.  Railw.  v.  Wright,  22  Ind.  376. 

*"  Indiana  Central  Railw.  r.  Moore,  23  Ind.  14. 

*•  Indianapolis  R.  Co.  p.  Adkins,  23  Ind.  340.  See  also  Eames  p.  Boston  & 
Worcester  Railw.,  14  Allen.  151.  In  this  case  the  company  erected  bars  for  the 
accommodation  of  the  land-owner,  and  the  animal  killed  escaped  upon  the  track, 

*498 


496  FENCES.  CH.  XIX. 

31.  A  railway  running  along  the  line  of  a  highway  is  required 
to  be  fenced  with  especial  care  and  watchfulness.*^  But  where  an 
animal  passes  upon  the  track  of  a  railway  at  the  crossing  of  a  high- 
way, where  it  would  not  be  proper  nor  practicable  to  make  any  ef- 
fectual fence  or  cattle-guards,  and  is  injured,  the  company  is  not 
responsible  unless  in  fault  in  the  management  of  the  train  at  the 
time.*^  And  it  was  here  considered  that  notwithstanding  the  facts 
that  the  plaintiff  was  guilty  of  negligence  in  permitting  the  animal 
to  stray  upon  the  track,  and  was  not  an  adjoining  proprietor,  he 
might  recover  for  an  injury  thereto  by  the  cars  of  a  railway  com- 
pany if  their  track  was  not  fenced.  But  where  the  owner  of  a 
blind  horse  turned  him  out  upon  the  common  of  a  town,  through 
which  a  railway  ran,  where  he  was  killed  by  a  passing  train,  and 
the  track  was  not  fenced,  it  was  held  he  could  not  recover,  on 
account  of  his  own  gross  negligence.** 

32.  In  actions  against  railway  companies,  under  the  statute,  for 
injury  to  domestic  animals,  it  should  appear  affirmatively  that  the 
case  comes  within  the  provisions  of  the  statute.  Thus  where 
railways  are  required  to  fence  their  roads  within  six  months  after 
opening  them  for  use,  on  penalty  of  being  responsible  for  all  cat- 
tle injured,  it  should  appear,  in  an  action  for  *  injury  by  reason 
of  such  omission,  that  the  six  months  had  expired.*^  So  if  it 
claimed  that  the  injury  occurred  by  reason  of  the  omission  to 
fence,  it  should  appear  that  it  occurred  at  a  point  in  the  road 
where  the  company  were  not  excused  from  fencing.*^  To  consti- 
tute a  town  or  village  within  the  statute  it  is  not  requisite  there 
should  be  any  plot  of  the  same  dedicating  streets,  &c.,  in  the 
manner  provided  by  statute.*^ 

by  the  bars  being  left  down,  and  afterwards  passed  upon  the  adjoining  lot,  and 
then  upon  the  railway  again,  it  not  appearing  precisely  how.  The  court  held, 
the  owner  could  not  recover  without  showing  the  bars  were  down  without  his 
fault,  or  else  that  the  animal,  after  leaving  the  track,  came  upon  it  again  through 
the  fault  of  the  company. 

«  Ind.  &  Cin.  R.  Co.  v.  Guard,  24  Ind.  222 ;  Same  v.  McKinney,  id.  283. 

«  Ind.  &  Cin.  R.  Co.  v.  McKinney,  24  Ind.  283. 

**  Knight  V.  Toledo  &  Wabash  R.  Co.,  24  Ind.  402.  A  railway  company  is 
not  bound  to  resort  to  any  extraordinary  means  to  insure  the  fence  being  kept 
up  along  its  line  night  and  day ;  reasonable  diligence  is  all  that  is  required.  Il- 
linois Central  Railw.  v.  Dickerson,  27  111.  55 ;  Same  v.  Phelps,  29  id.  447 ;  Same 
».  Swearingen,  33  id.  289. 

**  Ohio  &  Miss.  R.  Co.  V.  Meisenhiemer,  27  HI.  30;  Same  r.  Jones,  id.  41. 

«  Illinois  Central  Railw.  Co.  r.  Williams,  27  111.  48. 
•499 


§  128.  AGAINST  WHAT  CATTLE  BOUND  TO   PENCE.  497 

33.  An  owner  of  mules  killed  upon  the  track  of  a  railway  by  an 
engine  and  cars,  cannot  recover  therefor,  even  where  they  escaped 
from  a  properly  fenced  enclosure  without  his  knowledge,  and  were 
on  the  highway  at  its  intersection  with  the  railway .^'^ 


SECTION   II. 
Against  %ohat  Cattle  the  Company  is  bound  to  fence. 


6.  Comment  upon  the  last  case. 

6.  Statement  of  case  in  Massachusetts. 

7.  Further  comment  on  the  last  case. 

8.  Rule  of  responsibility  as  held  in  Ken- 

tucky. 

9.  Rule  laid  doum  in  Ohio. 

10.  Rule  in  Indiana. 

11.  Distinction  between  suffering  cattle  to  go 

at  large  and  accidental  escape. 


1.  At  common  law  every  owner  bound  to  re- 

strain his  own  cattle, 

2.  And  if  bound  to  fence  against  others'  land, 

it  extends  only  to  those  cattle  rightfully 
ufxm  stich  land. 

3.  Company  may  agree  with  land-owner  to 

fence,  and  this  will  escuse  damage  to 
cattle. 
n.  6.  Review  of  cases  upon  this  subject. 

4.  Owner  may  recover  unless  guilty  of  express 

neglect. 

§  128.  1.  At  common  law  the  proprietor  of  land  was  not  obliged 
to  fence  it.  Every  man  was  bound  to  keep  his  cattle  upon  his 
own  premises,  and  he  might  do  this  in  any  manner  he  chose. ^ 

2.  And  where,  by  prescription  or  contract,  or  by  statute,  a  *  land 
proprietor  is  bound  to  fence  his  land  from  that  of  the  adjoining 
proprietor,  it  is  only  as  to  cattle  rightfully  in  such  adjoining  land.* 
The  same  rule  has  been  extended  to  railways.^ 

And  it  has  been  considered  in  some  cases  that  where  no  statute, 
in  terms,  imposes  upon  railways  the  duty  of  fencing  their  roads, 
that  they  are  not  bound  to  fence,  and  that  the  owner  of  cattle  is 

«  North  Penn.  Railw.  Co.  v.  Rehmon,  49  Penn.  St.  101. 

'  Dova«ton  p.  Payne,  2  H.  Bl.  627 ;  Rust  v.  Low,  6  Mass.  90,  99 ;  Jackson 
p.  Rut.  &  Bur.  Railw.,  25  Vt.  157,  168;  Wells  p.  Howell,  19  Johns.  385;  Man- 
chester, Sh.  &  Lincoinsh.  Railw.  p.  Wallis,  14  C.  B.  243 ;  8.  c.  25  Eng.  L.  &  Eq. 
373 ;  Morse  r.  Rut.  &  Bur.  Railw.,  27  Vt.  49  ;  Lafayette  &  Ind.  Railw.  p.  Shriner, 
6  Porter  (Ind.),  141 ;  Woolson  p.  Northern  Railw.,  19  N.  H.  267  ;  Indianapolis 
&  Cin.  Railw.  p.  Kinney,  8  Ind.  402.  But  in  Pennsylvania  the  common-law  nile 
in  regard  to  keeping  one's  cattle  at  home  is  reversed  by  statute,  and  improved 
lands  must  be  fenced  in  order  that  the  owner  may  recover  for  damages  done  by 
Stray  cattle.     Gregg  p.  Gregg,  26  Legal  Intel.  372,  Nov.  '68. 

*  Same  cases  above ;  Lord  p.  Wormwood,  29  Maine,  282. 

'  Ricketta  p.  East  &  West  India  Docks  &  Birmingham  J.  Railw.,  12  C.  B.  101 ; 
8.  c.  12  Eng.  L.  &  Eq.  620 ;  Perkins  p.  Eastern  Railw.  Co.,  29  Maine,  307  ;  Towns 
p.  Cheshire  Railw.,  1  Foster,  368;  Cornwall  p.  Sullivan  Railw.  8  Foster,  161! 

82  *600 


498  FENCES.  CH.  XIX. 

bound  to  keep  them  oflf  the  road,  or  liable  to  respond  in  damages  for 
any  injury  which  may  be  caused  by  their  straying  upon  the  railway,* 
and  as  a  necessary  consequence  cannot  recover  for  any  damage 
which  may  befall  tliem.° 

*  3.  But  where  a  railway  is  not  obliged  to  fence  unless  requested 

*  Vandegrift  r.  Rediker,  2  Zab.  186 ;  Tonawanda  Railw.  v.  Munger,  6  Denio, 
255;  s.  c.  affirmed  in  error,  4  Corast.  349;  Clark  r.  Syracuse  &  Utica  Railw., 
11  Barb.  112;  Williams  r.  Mich.  Central  Railw.,  2  Mich.  259;  New  York  & 
Erie  Railw.  r.  Skinner,  19  Penn.  St.  298. 

*  Brooks  V.  New  York  &  Erie  Railw.,  13  Barb.  594.  In  this  case  it  was  held 
that  the  statute  requiring  railways  to  maintain  cattle-guards  at  road-crossings 
did  not  extend  to  farm-crossings.  So  too  it  has  been  held  that  the  statute  re- 
quiring gates  or  cattle-guards  at  road-crossings  does  not  extend  to  street-cross- 
ings. Vanderkar  v.  Rensselaer  &  Sara.  Railw.,  13  Barb.  390.  In  Central 
Military  Track  Railw.  v.  Rockafellow,  17  Illinois,  541,  the  rule  is  laid  down  in 
regard  to  cattle  straying  upon  a  railway,  that  they  are  to  be  regarded  as  wrong- 
fully upon  the  road,  and  the  owner  cannot  recover  for  an  injury,  unless  caused 
by  wilful  misconduct  or  gross  negligence.  The  court  say,  "A  railroad  company 
has  a  right  to  run  its  cars  upon  its  track  without  obstruction,  and  an  animal  has 
no  right  upon  the  track  without  consent  of  the  company,  and  if  suffered  to  stray 
there,  it  is  at  the  risk  of  the  owner  of  the  animal." 

And  in  Illinois  Central  Railw.  v.  Reedy,  17  Illinois,  580,  the  same  court  say, 
*'  Animals  wandering  upon  the  track  of  an  unenclosed  railroad,  are  strictly  tres- 
passers, and  the  company  is  not  liable  for  their  destruction,  unless  its  servants 
are  guilty  of  wilful  negligence,  evincing  reckless  misconduct."  —  "The  burden 
of  proof  is  on  the  plaintiff  to  show  negligence  ;  the  mere  fact  that  the  animal  was 
killed  "  is  not  enough. 

In  Munger  v.  Tonawanda  Railw.,  4  Comst.  349,  it  is  held,  that  cattle  escaping 
from  the  enclosure  of  the  owner  and  straying  upon  the  track  of  a  railway,  are  to 
be  regarded  as  trespassers,  and  no  action  can  be  maintained  against  the  com- 
pany if  the  negligence  of  the  plaintiff  concurred  with  that  of  the  company  in 
producing  an  injury  to  the  cattle  while  in  that  situation ;  and  that  the  law 
charges  the  owner  of  cattle,  in  such  case,  with  negligence,  although  his  enclos- 
ures are  kept  well  fenced,  and  he  is  guilty  of  no  actual  negligence,  in  suffering 
the  cattle  to  escape.  And  it  was  accordingly  held,  that  the  company  was  not 
liable,  under  such  circumstances,  for  negligently  running  an  engine  upon  and 
killing  the  plaintiff's  cattle. 

The  same  principles  substantially  are  maintained  in  the  same  case,  5  Denio, 
255.  And  it  is  further  held  here,  that  where  the  general  statutes  of  the  state 
allow  towns  to  prescribe  what  shall  be  a  legal  fence,  and  when  cattle  may  run 
at  large  in  the  highway,  and  which  forbid  a  recovery  for  a  trespass  by  cattle 
lawfully  in  the  highway,  by  one  whose  fences  do  not  conform  to  the  town  ordi- 
nance upon  the  subject,  this  will  have  no  application  to  railways,  and  that  cattle 
allowed  to  run  in  the  highway  by  such  ordinance,  and  which,  while  so  running 
in  the  highway,  enter  upon  the  lands  of  a  railway  at  a  road-crossing,  where  there 
is  no  obstruction  against  the  intrusion  of  cattle,  are  to  be  regarded  as  trespassers. 
•601 


§  128.  AGAINST  WHAT  CATTLE  BOUND  TO   FENCE.  499 

by  the  land-owner,  and  had  agreed  with  such  owner  tliat  they 
should  not  fence  against  his  land,  and  a  cow  placed  in  such  lands 
strayed  upon  the  track  of  the  road,  and  was  killed  by  a  train,  it 
was  held  the  owner  of  the  cow,  having  by  his  own  fault  contributed 
to  the  loss,  could  not  recover  of  tlie  company.* 

4,  In  a  late  case  in  Connecticut,"  it  was  decided  that  where  cat- 
tle are  at  large  without  the  fault  of  the  owner,  and  go  upon  the 
track  of  a  railway,  and  are  injured  through  the  negligence  of  the 
company  in  the  management  of  their  train,  the  owner  is  not  pre- 
cluded from  recovering  damages,  because  the  cattle  were  tres- 
passers upon  the  railway.  In  order  to  preclude  the  plaintiff 
from  recovery  in  such  case,  he  must  have  been  guilty  of  express, 
and  not  merely  of  constructive,  wrong  in  suffering  the  cattle  to  go 
at  large. 

*  5.  VVe  could  not  dissent  from  the  propositions  maintained  in  the 
preceding  case,  notwithstanding  some  hesitation  in  regard  to  the 
proper  construction  placed  by  the  court  upon  the  facts  found  in 
the  case.  The  law  of  every  case  must  be  judged  of  by  the  facts 
which  the  court  assume  to  be  established  in  deciding  it.  It  would 
be  as  unfair  to  criticise  the  decision  of  a  court,  upon  a  new  construc- 
tion of  the  facts,  as  it  would  upon  a  different  state  of  the  testimony 
at  a  different  trial.  The  decision  of  a  court  is  good  or  bad  upon 
the  facts  assumed  by  the  judge,  and  no  fair-minded  man  will  at- 
tempt to  escape  from  the  weight  of  an  authority  by  assuming  or 

•  Tower  v.  Providence  and  Worcester  R&ilw.,  2  Rhode  Island,  404. 

'  Isbell  V.  New  York  &  New  H.  Railw.  Co.,  27  Conn.  393.  The  courta  in 
Indiana,  in  hearing  cases  in  error,  feel  bound  to  presume  that  the  court  below 
applied  the  testimony  correctly  in  determining  localities  and  geographical 
boundaries,  and  especially  in  matters  affecting  jurisdiction,  as  tlie  local  courta 
would  more  naturally  understand  these  (juestions  than  another  less  familiar 
with  the  facts.  Ind.,  &c.  Railw.  Co.  v.  Moore,  16  Ind.  43;  Same  c.  Snelling, 
id.  435. 

By  the  law  of  Indiana,  before  the  statute  of  18.59,  it  must  appear,  in  order 
to  recover  damages  for  animals  killed  or  injured  by  a  railway  company,  that  it 
occurred  through  the  negligence  of  the  company,  and  without  the  immediate 
fault  of  the  owner.  Wright  p.  Ind.,  &c.  Railw.  Co.,  18  Ind.  168;  Toledo  A 
Wabash  Railw.  Co.  v.  Thomas,  id.  215.  The  act  of  1859  is  prospective  only. 
Ind.,  &c.  Railw.  Co.  p.  Elliott,  20  id.  430.  It  was  here  made  a  question  whether 
a  statute  awarding  damages  to  the  owners  of  animals  killed  or  injured  by  the 
rolling  stock  of  any  railway,  applied  equally  to  freight  as  to  passenger  traina, 
and  it  was  held  that  it  did.  The  wonder  is  that  any  such  question  should  ever 
be  made.     We  never  before  supposed  there  could  be  any  doubt  in  regard  to  it. 

•602 


600  FENCES.  CH.  XIX. 

even  proving,  that  the  judge  took  a  mistaken  view  of  the  facts.  It 
is  merely  an  attempt  to  balance  one  assumed  blunder  of  the  court, 
by  showing  that  tliey  fell  into  another  in  an  opposite  direction.  A 
decision  is  good  upon  the  ground  upon  which  it  is  placed,  or  it  is 
wrong  upon  every  ground. 

6.  We  have  said  thus  much  in  order  to  state  that  the  case  of 
Browne  v.  Providence,  Hartford,  and  Fishkill  Railway  Company,^ 
which  decides  that  a  railway  corporation,  which  is  obliged  by  law 
to  make  all  needful  fences  and  cattle-guards  upon  the  sides  of  its 
track,  is  liable  for  injuries  by  its  engines  to  cattle  straying  at  large 
through  the  land  of  a  stranger  upon  its  road,  by  reason  of  its  neg- 
ligence in  not  erecting  fences  and  cattle-guards  as  required  by 
statute,  seems  clearly  to  have  assumed  a  different  rule  of  respon- 
sibility, as  against  railway  companies,  from  that  which  has  ordina- 
rily been  before  applied  to  all  lawful  business,  as  between  adjoining 
proprietors.  Indeed,  the  court  distinctly  assume  the  position,  that 
the  common-law  responsibility  imposed  upon  adjoining  land-owners 
is  not  sufficient,  and  that  railway  companies  must  be  held  to  a 
higher  degree  of  responsibility,  "  on  account  of  the  new  circum- 
stances and  condition  of  things  arising  out  of  the  general  introduc- 
tion and  use  of  railways  in  the  country,"  and  that  the  requirements 
of  the  railway  companies  in  regard  to  fencing  and  cattle-guards 
"  were  designed  for  the  safety  of  the  *  public,  and  for  the  protection 
of  all  domestic  animals,  whether  rightfully  or  wrongfully  out  of 
their  owners'  enclosure." 

7.  This  decision  certainly  has  the  credit  of  meeting  the  ques- 
tion involved  fairly,  and  of  wrestling  manfully  with  its  difficulties, 
and  of  placing  it  upon  the  only  plausible  ground,  that  the  business 
was  so  dangerous  to  the  public  that  it  merited  a  more  extended 
construction,  where  railways  are  required  to  fence  their  roads, 
than  where  other  land-owners  were  required  to  do  the  same  thing. 
We  had  always  supposed  that  railways  were  required  to  fence  their 
roads  for  the  protection  of  their  passengers,  and  of  persons  and 
animals  rightfully  in  the  highway  or  the  adjoining  lands.  And  we 
have  yet  to  learn  any  sound  principle  upon  which  they  can  fairly 
be  required  to  guard  against  injuries  to  persons  or  animals  wrong- 
fully upon  their  track,  by  making  permanent  erections  to  preclude 
such  persons  or  animals  from  coming  there.  It  is  true,  unques- 
tionably, that  railway  companies,  in  common  with  all  others,  are 

8  12  Gray,  65.     Ante,  §  127,  pi.  21,  and  notes. 
•603 


§  128.  AGAINST  WHAT   CATTLE   BOUND   TO   FENCE.  601 

bound  to  avoid  doing  an  injury  to  any  one,  if  it  can  be  avoided  at 
the  time,  whether  such  person  or  his  property  be  rightfully  or 
wrongfully  in  their  way  ;  but  that  this  duty  extends  to  previous 
precautions  against  doing  injuries  to  persons  wrongfully  upon  their 
track,  either  personally  or  by  their  property,  is  more  than  can 
fairly  be  maintained,  as  it  seems  to  us,  unless  railways  are  to 
be  outlawed  in  this  respect  Every  one  in  the  exercise  of  a  law- 
ful business  has  the  right  to  expect,  and  to  conduct  his  business 
upon  the  expectation  that  others  will  also  perform  their  duty,  and 
if  they  do  not,  that  they  will  be  required  by  the  administrators  of 
the  law  to  take  the  natural  consequences  of  such  neglect,  provided 
that  even  when  in  fault,  in  exposing  themselves  or  their  property 
to  damage  and  loss,  from  the  lawful  pursuit  of  lawful  business  by 
others,  they  be  not  wantonly  damaged  by  such  others,  but  only 
from  necessity.  And  this  is  all  which  we  understand  to  have  been 
decided  by  the  case  of  Isbell  v.  New  York  and  New  Haven  Railway 
Company  J  And  in  the  later  case  in  Massachusetts,*  Chapman,  J., 
seems  to  assume  the  same  ground,  and  it  is  the  only  one  in  our 
judgment  fairly  maintainable. 

8.  A  railway  company  which  is  not  bound  to  fence  its  track  *  is 
not  liable  for  injuries  inflicted  by  its  engines  and  trains  upon  cat- 
tle straying  upon  the  track  of  the  road,  unless  such  injury  was 
caused  by  the  wanton  and  reckless  negligence  of  the  company 
through  its  agents  and  servants.^^ 

9.  It  was  held  in  Ohio,"  that  where  a  land-owner  granted  to  the 
company  the  right  of  way  of  a  given  width,  and  covenanted  to 
maintain  the  fences  on  both  sides,  and  subsequently  conveyed  the 
land,  it  was  held  that  the  grantee  of  the  land  was  so  far  affected 
by  his  grantor's  covenant  to  maintain  the  fences  on  the  line  of  the 
railway  that  he  could  not  visit  any  consequences  upon  the  com- 
pany resulting  from  its  not  being  performed,  but  must  bear  them 
himself. 

10.  Where  the  owner  of  cattle  was  not  in  the  habit  of  suffering 
his  cattle  to  go  at  large  on  the  railway  track,  and  was  not  in  a 
position  to  take  any  steps  to  avert  the  danger  they  might  be  in 
from  the  passing  trains  of  the  company,  the  presence  of  the  cat- 

•  Rogers  r.  Newburyport  Railw.  Company,  1  Allen,  16. 
»  Lou.  &  Frankfort  R.  Co.  v.  Ballard,  2  Met.  (Ky.)  177. 
»  Easter  r.  Little  Miami  R.  Co.,  14  Ohio  N.  S.  48.    See  also  McCool  r.  Galena 
&  Chicago  Union  R.  Co.,  17  Iowa,  461. 

•604 


602  FENCES.  CH.  XIX. 

tie  upon  the  track  will  be  regarded  as  accidental,  and  at  most 
they  will  be  deemed  but  as  trespassers,  and  be  presumed  to  have 
escaped  through  the  insufficiency  of  fences,  and  liable  for  any 
damage  they  might  cause.  But  if  the  servants  of  the  company 
used  no  means  to  avoid  killing  the  cattle,  and  manifested  such 
indifference  to  consequences,  such  a  degree  of  rashness  and  wan- 
tonness as  evinced  a  total  disregard  for  the  safety  of  the  cattle, 
and  a  willingness  to  destroy  them,  although  the  destruction  may 
not  have  been  intentional,  in  justice  and  upon  principle  the 
company  should  be  held  responsible  for  the  damages,  unless  it 
appear  that  the  owner  was  equally  in  fault.^  The  simple  killing 
of  an  animal  by  a  railway  company's  train  is  prima  fade  evi- 
dence of  negligence  on  the  part  of  their  engineer.^^ 

11.  In  one  case  ^^  it  was  held  that  the  negligence  on  the  part  of 
*  the  owner  of  cattle,  which  shall  preclude  his  recovery  for  an  injury 
to  them  by  a  railway  train,  must  depend  more  upon  its  degree 
than  upon  the  time  when  it  occurs  ;  and  a  distinction  in  this  re- 
spect should  be  made,  between  one  who  suffers  his  cattle  knowingly 
to  go  at  large  where  they  will  naturally  be  exposed  to  passing 
trains  upon  a  railway,  and  cases  where  the  cattle  get  at  large  with- 
out the  owner's  knowledge,  through  defect  of  fences  or  their  being 
temporarily  thrown  down. 

"  Indianapolis,  &c.  R.  Co.,  v.  Meek,  10  Ind.  602. 

"  C.  H.  &  N.  W.  R.  Co.  V.  Goss,  17  Wise.  428.  All  questions  of  negli- 
gence, where  there  is  any  uncertainty  in  the  facts,  must  be  submitted  to  the  jury 
under  proper  instructions.  Congor  v.  Galena,  &c.  U.  R.  Co.,  id.  477.  We 
have  discussed  this  question  in  Briggs  v.  Taylor,  28  Vt.  180,  184.  Post,  §  176, 
pi.  2. 

*605 


§129. 


CONTRACTORS  AND  THEIR   AGENTS. 


503 


•CHAPTER    XX. 


LIABILITIES  IN   REGARD  TO   CONTRACTORS,  AGENTS,  AND   SUB-AGENTS. 

SECTION    L 
LiabUityfor  Acta  and  Omissions  of  Contractors  and  their  Agents. 


1.  Compann  twl  ordinarily  liable  far  tie  act 

of  the  contractor  or  his  tervatU. 

2.  BtU  if  the  contractor  is  empUnfod  to  do  the 

very  act,  campanj/  is  liable. 
8.  AmericoH  court*  seem  disposed  to  adopt 

the  same  rule. 
4.  Distinction  attempted  between  liability  for 

acts  done  upon  movable  and  iwimovable 

property  not  maintainable. 
6.    Cases  referred  to  tohere  true  grounds  of 

distinction  are  stated. 

6.  No  proper  ground  of  distinction  in  regard 

to  mode  of  employment. 

7.  Proper  basis  of  company's  UabHity  ex- 

plained. 


8. 


9. 


So  long  as  one  retains  control  of  work  he 
is  responsible  ftr  the  conduct  of  it. 

A  master  workman  is  only  responsible  for 
the  faithfulness  and  care  of  his  work- 
men,  in  the  business  of  their  employ- 
ment. 
10.  Railway  company  responsible  for  injuries 
consequent  upon  defects  of  construction, 
in  the  course  of  the  work  by  a  ooit- 
tractor. 

But  ordinarily  the  employer  is  not  respon- 
sible for  the  negligent  mode  in  which 
work  is  done,  the  contractor  being  only 
employed  to  do  it  in  a  lawful  and  rea- 
sonable manner. 


11 


§  129.  1.  The  general  doctrine  seems  now  firmly  established,  that 
the  company  is  not  liable  for  the  act  of  the  contractor's  servant, 
where  the  contractor  has  an  independent  control,  although  subor- 
dinate, in  some  sense  to  the  general  design  of  the  work.  The  dis- 
tinction, although  but  imperfectly  defined  for  a  long  time,  has 
finally  assumed  definite  form,  that  one  is  liable  for  the  act  of  his 
servant,  but  not  for  that  of  a  contractor,  or  of  the  servant  of  a  con- 
tractor.^ 

'  Laugher  e.  Pointer,  5  B.  &  C.  547,  where  the  subject  is  ably  discussed,  but 
not  decided,  the  court  being  equally  divided.  Quarman  v.  Burnett,  6  M.  &  W. 
499 ;  Milligan  v.  Wedge,  12  Ad.  &  Ellis,  737 ;  Knight  t.  Fox,  5  Exch.  721 ; 
Burgess  v.  Gray,  1  C.  B.  678 ;  Overton  r.  Freeman,  11  C.  B.  867 ;  8.  c.  8  Eng. 
L.  &  Eq.  479 ;  Peachey  c.  Rowland,  13  C.  B.  182 ;  8.  c.  16  Eng.  L.  &  Eq.  442 ; 
Rapson  p.  Cubitt,  9  M.  &  W.  710;  Reedie  t.  London  &  N.  W.  Railw.,  6  Railw. 
C.  184 ;  Hobbitt  r.  Same,  6  Railw.  C.  188 ;  8.  c.  4  Exch.  244 ;  Steel  r.  South- 
eastern Railw.,  16  C.  B.  550;  s.  c.  32  Eng.  L.  &  Eq.  366.  In  this  last 
case,  the  action  against  the  company  was  for  flowing  plaintiff^s  land,  by  the 
defective  manner  in  which  certain  mason  work  was  done,  by  the  workmen 
of  one  Fumess,  who  did  the  work  as  a  contractor  under  the  company,  but  under 
the  superintendence  of  one  Phillips,  the  surveyor  of  the  company,  who  furnished 

•506 


504     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    OH.  XX. 

*  2.  But  if  the  contractor  or  his  servants  do  an  act  which  turns 
out  to  be  illegal,  or  a  violation  of  the  rights  of  others,  and  it  be 
the  very  act  which  he  was  employed  to  do,  the  employer  is  liable 
to  an  action.2  Lord  Campbell,  Ch.  J.,  here  said,  "  The  position 
in  effect  contended  for  by  defendants'  counsel,  I  think  wholly 
untenable,  namely,  that  where  there  is  a  contractor,  the  employer 
can  in  no  case  be  made  liable.  It  seems  to  me,  that  if  the  con- 
tractor do  that  which  he  is  ordered  to  do,  it  is  the  act  of  the  em- 
ployer, and  this  appears  to  have  been  so  considered  in  the  cases  " 
[upon  the  subject] .  "  In  these  cases  nothing  was  ordered,  except 
that  which  the  party  giving  the  order  had  a  right  to  order,  and 
the  contract  was  to  do  that  which  was  legal,  and  the  employer 
was  held  properly  not  liable  for  what  the  contractor  did  negli- 
gently, the  relation  of  master  and  servant  not  existing.  But 
here  the  defendants  employ  a  contractor  to  do  that  which  was 
unlawful.  Upon  the  principle  contended  for,  a  man  might  protect 
himself  in  the  case  of  a  menial  servant,  by  entering  into  a  contract." 

3.  The  American  cases  have  not  as  yet,  perhaps,  assumed  that 
definite  and  uniform  line  of  decision  which  seems  to  obtain  in  the 
English  courts  upon  the  subject.  But  there  is  a  marked  disposition, 
manifested  of  late,  to  adopt  substantially  the  same  view.^  But 
some  of  the  earlier  cases  in  this  country  and  in  England,  hold  the 
employer  responsible  for  all  the  acts  and  omissions  of  a  contractor, 
the  same  as  for  those  of  a  servant.^ 

the  plans.  It  appeared  that  the  injury  resulted  from  the  workmen  not  following 
the  directions  of  Phillips.  The  court  held  the  action  could  not  be  maintained. 
Cresswell,  J.,  said:  "If  it  could  have  been  shown  that  the  plaintiff's  land  was 
flooded  in  consequence  of  something  done  by  the  orders  of  Phillips,  the  com- 
pany's surveyor,  it  might  have  been  said  that  was  the  same  as  if  Phillips  had  done 
it  with  his  own  hands,  and  then  the  company  would  have  been  responsible.  This 
work  was  done  under  a  contract,  and  there  is  nothing  to  show  negligence  in  any 
one  for  whose  acts  the  company  are  responsible."  This  seems  to  be  placing  the 
matter  upon  its  true  basis.  See  also  Young  v.  New  York  Central  Railw.,  30 
Barb.  229.  But  if  a  servant  of  the  contractor,  while  employed  on  the  work, 
receive  an  injury  from  a  passing  train  of  the  company  through  the  fault  of  their 
servants,  and  without  his  own  fault,  he  may  maintain  an  action  against  the  com- 
pany,    lb.  See  also  City  of  Cincinnati  v.  Stone,  5  Ohio  N.  S.  38. 

'  Ellis  V.  The  Sheffield  Gas  Consumers'  Co.,  2  El.  &  Bl.  767 ;  s.  c.  22  Eng. 
Law  &  Eq.  198. 

'  Kelly  V.  Mayor  of  New  York,  1  Keman,  432 ;  Blake  v.  Ferris,  1  Selden, 
48 ;  Pack  v.  The  Mayor  of  New  York,  4  Selden,  222 ;  Hutehinsoif  v.  York  and 
Newcastle  Railw.,  5  Exch.  343;  8.  c.  6  Railw.  C.  580,  589.- 

*  Bush  V.  Steinman,  1  B.  &  P.  404 ;  Lowell  v.  Boston  and  Lowell  Railw.  23 

•607 


§  129.  CONTRACTORS  AND   THEIR  AGENTS.  505 

*  4.  At  one  time  a  distinction  was  attempted  to  be  maintained, 
between  the  liability  of  the  owner  of  fixed  and  permanent  prop- 
erty and  the  owner  of  movable  chattels,  for  work  done  in  regard 
to  them,  or  with  them,  making  the  employer  liable  in  the  former 
and  not  in  the  latter  case.^  Bnt  the  distinction  was  found  to 
rest  upon  no  satisfactory  basis,  and  was  subsequently  abandoned.^ 

5.  The  grounds  of  all  the  decisions  upon  this  subject  are  fully 
and  satisfactorily  explained,  in  the  late  cases  of  Ellis  v.  Gas  Con- 
sumers' Company ,2  and  Steel  v.  Southeastern  Railway.^ 

6.  Sometimes  a  distinction  has  been  attempted  to  be  drawn,  in 
regard  to  the  employer,  whether  the  employment  were  by  the  job 
or  by  the  day,  making  him  liable  for  the  acts  of  the  operatives  in 
the  latter  and  not  in  the  former  case.  But  this  is  obviously  no 
satisfactory  ground  upon  which  to  determine  the  question,  although 
it  might,  in  point  of  fact,  come  very  nearly  to  *  effecting  the  same, 
or  a  similar  separation  of  the  instances  in  which  the  employer  is 
or  is  not  liable. 

7.  The  true  ground  of  the  distinction  being,  after  all,  not  the 

Pick.  24.  See  also,  upon  this  point,  Mayor  of  New  York  r.  Bailey,  2  Denio, 
433 ;  Elder  r.  Bemis,  2  Met.  599 ;  Earle  r.  Hall,  id.  353.  In  the  latter  case  the 
subject  is  very  ably  discussed,  and  the  early  cases  somewhat  qualified.  And  in 
the  case  of  Billiard  v.  Richardson,  3  Gray,  349,  there  is  a  very  elaborate  and 
satisfactory  opinion,  by  Mr.  Justice  Thomas,  in  which  the  cases  are  very  exten- 
sively reviewed,  and  the  old  rule  of  Bush  v.  Steinman  distinctly  repudiated. 

*  Rich  IT.  Basterfield,  4  C.  B.  783;  The  King  v.  Pedley,  1  Ad.  &  Ellis,  822. 
And  see  Fish  r.  Dodge,  4  Denio,  311.  Littledale,  J.,  in  Laugher  r.  Pointer,  5 
B.  &  C.  547.  Parke,  B.,  in  Quannan  v.  Burnett,  6  M.  &  W.  510;  Randleson 
r.  Murray,  8  Ad.  &  Ellis,  109. 

*  Alien  ».  Hayward,  7  Q.  B.  960;  Reedie  v.  London  and  N.  W.  Railw.,  4 
Exch.  244.  But  it  is  still  maintained,  by  some,  that  if  the  owner  or  occupier  of 
real  estatu  employ  workmen  under  a  contract  which  presupposes  the  underlet- 
ting of  the  work,  or  the  employment  of  subordinates,  and  in  the  course  of  the 
accomplishment  of  the  work  any  thing  is  done,  by  digging  or  suiTering  rubbish  to 
accumulate,  which  amounts  to  a  public  nuisance,  whereby  any  person  suffers 
special  damage,  the  owner  or  o«"cupier  of  the  premises  is  liable.  Bush  v.  Stein- 
man, 1  B.  &  P.  404;  Randleson  v.  Murray,  8  Ad.  &  Ellis,  109.  But  this  rule 
is  questioned.  Fish  v.  Dodge,  4  Denio,  311.  And  after  all  it  seems,  like  the 
other  phases  of  the  same  question,  to  resolve  itself  into  an  inquiry,  how  far  the 
first  employer  may  fairly  be  said  to  have  done,  or  caused  to  be  done,  the  wrong- 
ful act.  Burgess  v.  Gray,  1  C.  B.  578.  If  the  nuisance  occurred  naturally,  in 
the  ordinary  course  of  doing  the  work,  the  occupier  is  liable ;  but  if  it  is  some 
irregularity  of  the  contractor,  or  his  servants,  he  alone  is  responsible.  See 
Carman  r.  Stubenville  and  Ind.  Railw.,  4  Ohio  N.  S.  399;  Thompson  r.  New 
Orleans  &  Carrollton  Railw.,  1  Louis.  Ann.  178 ;  8.  c.  4  id.  262 ;  8.  c.\0  id.  403. 

•608,609 


506     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.   CH.  XX. 

form  of  the  employment,  or  the  rule  of  compensation,  but  whether 
the  work  was  done  under  the  immediate  control  and  direction 
of  the  employer,  so  that  the  operatives  were  his  servants,  and  not 
the  servants  of  another,  who  was  himself  the  undertaker  for  ac- 
complishing the  work,  and  having  a  separate,  and  independent,  and 
irresponsible  control  of  the  operatives,  bringing  the  question  again 
to  the  same  point,  the  difference  between  a  contractor  and  a  servant." 

8.  In  a  recent  case  before  the  Privy  Council,  where  the  owner 
of  land  employed  Indian  laborers  in  the  Mauritius,  at  so  much 
per  acre,  to  clear  it,  which  they  did,  partly  by  lighting  a  fire  so 
negligently  that  sparks  were  carried  by  the  wind  upon  the  land 
of  another,  and  there  burned  down  his  house,  it  was  held,  upon 
the  ground  that  the  owner  of  the  land  retained  control  of  the 
work,  and  made  constant  interference  in  the  conduct  of  it,  that  he 
was  responsible  for  the  negligence  of  the  workmen,  as  the  relation 
of  master  and  servant,  or  superior  and  subordinate,  continued.^ 

9.  Where  one  gratuitously  permits  a  carpenter  to  do  a  piece  of 
work  in  a  shed  belonging  to  the  former,  and  one  of  the  workmen 
of  the  carpenter,  in  the  course  of  the  work,  dropped  a  match  with 
which  he  had  lighted  his  pipe,  and  thereby  set  fire  to  the  shed,  it 
was  held  the  master  was  not  responsible  for  the  damage ;  notwith- 
standing the  jury  found  it  occurred  from  the  negligent  act  of  the 
defendant's  workman.^  But  it  would  have  been  otherwise  if  the 
negligence  had  occurred  in  the  course  of  the  employment. 

'  In  the  case  of  Blackwell  v.  Wiswall,  24  Barb.  355,  is  an  elaborate  opinion 
by  Harris,  J.,  which  was  affirmed  by  the  full  court,  which  holds  that  the  only 
ground  upon  which  one  man  can  be  made  responsible  for  the  wrongful  acts  of 
another  is,  that  he  should  have  controlled  the  conduct  of  such  person.  And  that 
the  person  who  is  made  liable  for  the  acts  of  another  must  stand  in  the  relation 
of  superior. 

Hence  one  who  had  obtained  the  exclusive  right  of  a  ferry,  and  who  suffered 
another  to  operate  it  for  his  own  benefit,  as  lessee,  is  not  responsible  for  any  in- 
jury inflicted  upon  passengers,  through  the  negligence  or  unskilfulness  of  the 
servants  of  the  lessee,  who  conduct  the  ferry,  and  it  would  make  no  difference 
if  the  lessee  had  been  himself  conducting  the  ferry,  at  the  time  the  injury  accrued. 

And  if  it  were  true  that  the  grantee  of  the  ferry  was  guilty  of  a  breach  of 
duty,  in  making  the  lease,  it  will  not  entitle  any  one  to  sue  on  that  account,  un- 
less he  has  sustained  injury  resulting  from  the  act  of  leasing  directly,  and  not 
incidentally  merely. 

»  Serendat  ».  Saisse,  Law  Rep.  1  P.  C.  152;  8.  c.  12  Jur.  N.  S.  301.  The 
case  was  governed  by  the  rule  laid  down  in  the  Code  Napoleon,  but  that  is  not 
essentially  different  from  the  rule  of  the  English  law  upon'the  subject. 

»  Williams  v.  Jones,  3  H.  &  C.  602 ;  s.  c.  11  Jur.  N.  S.  843 ;  Woodman  v. 
*509 


§  130.      LIABILITIES  IN  REGARD   TO   AGENTS   AND   SERVANTS. 


607 


10.  And  when  a  railway  company  was  empowered  by  act  of 
parliament  to  build  a  bridge  across  a  navigable  river,  but  were  to 
do  it  so  as  not  to  detain  vessels  longer  than  while  persons  and 
teams  ready  to  cross  the  bridge  were  passing  over  ;  and  during  the 
construction  of  the  work  by  a  contractor,  by  some  defect  of  con- 
struction the  bridge  could  not  be  raised,  and  the  plaintiff's  vessel 
was  detained,  it  was  held  the  company  were  responsible.^^ 

11.  A  person  employing  another  to  do  a  lawful  act  is  presumed, 
in  the  absence  of  evidence  to  the  contrary,  to  employ  him  to  do  it 
in  a  lawful  and  reasonable  manner ;  and,  therefore,  unless  the 
parties  stand  in  the  relation  of  master  and  servant,  the  employer 
is  not  responsible  for  damages  occasioned  by  the  negligent  mode 
in  which  the  work  is  done.^^ 


•SECTION    IL 


lAabUUy  of  the  Company  for  the  Acta  of  their  Agents  and  Servants. 


10 


1.  Courts  manifett  disposition  to  give  tuch 

agents  a  liberal  discretion. 

2.  Company  liable  for  torts  committed   bj/ 

agents  in  discharge  of  their  duties. 
8.   May  be  liable  for  wilfiU  act  of  servant  in 

the  range  of  his  employment. 
4.    Some  of  the  cases  hold  it  necessary  to  show 

the  assent  of  the  company. 
n.  6.   Cases  upon  this  subject  reviewed. 
6.   Most  of  the  cases  adhere  to  the  principle  of 

respondeat  superior. 
6.   But  it  seems  not  to  have  been  amsidered 

that  the  company  is  preaaU, 
7.*  The  cafes  seem  to  regard  the  compaiuf  a$ 

always  absent. 

8.  In  cases  where  the  company  owe  a  special 

duty,  the  act  of  the  senxad  is  always 
that  of  the  company. 

9.  It  seems  more  just  and  reasonable  to  re- 

gard the  company  as  always  present  in 
.  the  person  of  their  agent. 

§  130.  1.  The  extent  of  the  liability  of  railways  for  the  acts  of 
their  servants  and  agents,  both  negative  and  positive,  seems  not 
very  fully  settled  in  many  of  its  incidents.     But  the  disposition  of 

Joiner,    10  id.  852 ;   Bartlett  v.   Baker,    3  H.    &  C.  153 ;  Blake  r.  Thirst,  2 
id.  20.  •"  Hole  r.  Sittingbonne  &  Sheemess  Railw.,  6  H.  &  N.  488. 

»  Butler  V.  Hunter,  7  H.  &  N.  826. 

•610 


What  shall  amount  to  ratifcation  of  the 
act  of  an  agent  by  a  corporation  diffi- 
cult to  d^ne. 

How  corporations  may  be  held  responsible 
for  the  publication  of  a  libel. 

The  powers  of  a  corporation  are  such 
only  as  are  conferred  by  c/iarter. 

False  certificate  of  capital  being  paid  in 
money. 

Gas  company  not  bound  to  supply  gas  to 
all  who  require  it. 
16.    Company  may  become  responnltie  for  false 
imprisonment. 

Company  responsible  for  injury  done  by 
various  animals  kejit  by  them  or  suffered 
to  remain  about  their  stations. 

The  general  manager  of  a  railway  com- 
pany may  bind  them  for  medical  aid  for 
servant  injured  in  their  employment. 


11 


12. 


18 


14. 


16 


17. 


508     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

the  courts  has  been  to  give  such  agents  and  servants  a  large  and 
liberal  discretion,  and'  hold  the  companies  liable  for  all  their  acts, 
within  the  most  extensive  range  of  their  charter  powers.^ 

*  2.  This  seems  the  only  construction  which  will  be  safe  or  just, 
or  indeed  practicable.  It  has  long  been  settled,  that  corporations 
are  liable  for  torts  committed  by  their  agents,  in  the  discharge  of 
the  business  of  their  employment,  and  within  the  proper  range  of 
such  employment.^ 

3.  But  it  has  been  claimed  sometimes,  that  a  corporation  is  not 
liable  for  the  wilful  wrong  of  its  agents  or  servants.^  This  opinion 
seems  to  rest  upon  those  cases  which  have  maintained  that  the 
master,  whether  a  natural  person  or  a  corporation,  is  never  liable 
for  the  wilful  act  of  his  servant.*  Without  stopping  here  to  dis- 
cuss the  soundness  of  the  general  principle,  as  applicable  to  the 
relation  of  master  and  servant,  it  must  be  conceded,  we  think,  that 
it  is  not  applicable  to  the  case  of  corporations,  and  especially  such 
as  railways.  In  regard  to  such  corporations,  it  seems  to  us  alto- 
gether an  inadmissible  proposition,  to  excuse  them  for  every  act  of 
their  servants  and  agents  which  is  done,  or  claimed  to  have  been 
done,  positively  and  wilfully,  and  which  results  in  an  injury  to  some 

'  Derby  p.  Phil.  &  Read.  Railw.,  14  Howard,  468,  483:  Noyes  v.  Rutland 
&  Burlington  Railw.,  27  Vt.  110.  We  may  suppose  the  officers  and  servants 
of  railways  to  take  exorbitant  fare  and  freight,  to  refuse  to  permit  passengers 
to  have  tickets  at  the  fixed  rate,  or  to  destroy  the  life  of  animals,  or  of  persons, 
by  recklessness,  or  wantonness,  in  the  discharge  of  their  appropriate  duties,  and 
it  would  be  strange  if  the  company  were  liable  in  the  former  case,  on  account  of 
their  special  duty  as  common  carriers,  and  not  in  the  latter,  because  they  owed 
no  duty  to  the  public  in  that  respect.  Alabama  &  Tenn.  Rivers  Railw.  v.  Kidd, 
29  Alabama,  221.  But  it  has  been  held  to  make  no  difference,  in  regard  to  the 
liability  of  the  company  for  the  act  of  their  servant,  while  acting  in  the  due 
course  of  his  employment,  that  he  did  not  follow  their  instructions,  either  general 
or  special.  Derby  v.  Phil.  &  Read.  Railw.,  14  How.  (U.  S.)  468,  483.  See 
also  Southwick  ».  Estes,  7  Cush.  385. 

*  Yarborough  v.  The  Bank  of  England,  16  East,  6 ;  Queen  v.  Birmingham, 
&  Gloucester  Railw.,  3  Ad.  &  Ell.  (N.  S.)  223 ;  Hay  v.  Cohoes  Co.,  3  Barb.  42 ; 
2  Aiken's  Vt.  255,  429 ;  Bloodgood  v.  M.  &  H.  Railw.  18  Wend.  9 ;  Dater  v. 
Troy  T.  &  Railw.,  2  Hill,  629  ;  Chestnut  Hill  Turnpike  Co.  v.  Rutter,  4  S.  &  R. 
16.  They  are  bound  by  estoppels  in  pais.  Hale  v.  Union  Mutual  Fire  Ins.  Co., 
32  N.  H.  295. 

^  Foster  v.  The  Essex  Bank,  17  Mass.  479,  510 ;  State  v.  Morris  &  Essex 
Railw.,  3  Zab.  360,  367. 

*  M'Manus  v.  Crickett,  1  East,  106 ;  Croft  v.  Allison',  4  B.  &  Aid.  590 ; 
Wright  V.  Wilcox,  19  Wend.  343. 

•611 


§  103.      LIABILITIES  IN   REGARD   TO   AGENTS   AND   SERVANTS.  509 

other  party,  or  proves  to  be  illegal,  unless  directed  or  ratified  by 
the  corporation.  Some  of  the  cases  seem  to  disregard  any  such 
ground  of  exemption  for  the  corporation.* 

4.  But  in  some  cases  it  has  been  held,  that  the  corporation  is 
not  liable  for  the  wilful  act  of  its  agents,  unless  done  with  the 
assent  of  the  corporation,  seeming  to  imply  that  if  the  servant 
pursue  his  own  whim  or  caprice,  and  act  upon  his  own  impulses, 
the  act  is  his,  and  not  that  of  the  corporation.^ 

»  Edwards  r.  The  Union  Bank  of  Florida,  1  Florida,  136 ;  Whiteman  r.  Wil- 
mington &  8us.  Railw.,  2  Harr.  514. 

•  Phil.,  Germantown  &  N.  Railway  t?.  Wilt,  4  Whart.  143;  Fox  ».  The 
Northern  Liberties,  3  W.  &  S.  103.  It  has  always  seemed  to  us,  that  the 
whole  class  of  cases,  which  hold  that  the  master  is  not  liable  for  the  wilful  acts 
of  his  servant,  has  grown  up  under  a  misconception  of  the  case  of  M'Manus  c. 
Crickett,  1  East,  106,  for  they  all  profess  to  base  themselves  upon  that  case. 

That  case  we  apprehend  was  never  intended  to  decide  more  than  that  the 
master  is  not  liable,  in  trespass,  for  the  wilful  act  of  the  servant.  Lord  Kent/on, 
Ch.  J.,  in  delivering  his  opinion  in  that  case,  with  which  the  court  concur,  ex- 
pressly says,  speaking  of  actions  on  the  case,  brought  against  the  master,  where 
the  servant  negligently  did  a  wrong,  in  the  course  of  his  employment  for  the 
master :  — 

"  The  form  of  these  actions  shows,  that  where  the  servant  is,  in  point  of  law, 
a  trespasser,  the  master  is  not  liable,  as  such,  though  liable  to  make  compensa- 
tion for  the  damage  consequential  from  his  employing  of  an  unskilful  or  negligent 
servant."     "The  act  of  the  master  is  the  employment  of  the  servant." 

This  reasoning  certainly  applies  with  the  same  force  to  that  class  of  cases 
where  the  act  of  the  servant  is  both  direct  and  wilful,  as  where  it  is  only  negli- 
gent. The  master  is  not  liable  in  either  case,  perhaps,  so  much  for  having  im- 
pliedly authorized  the  act,  as  for  having  employed  an  unfaithful  servant,  who  did 
the  injury,  in  the  course  of  his  employment.  And  whether  done  negligently  or 
wilfully,  seems  to  be  of  no  possible  moment,  as  to  the  liability  of  the  master,  the 
only  inquiry  being  whether  it  was  done  in  the  course  of  the  servant's  employ- 
ment. And  the  argument,  that  when  the  senant  acts  wilfully,  he  ipso  facto 
leaves  the  employment  of  the  master,  and  if  he  is  driving  a  coach-and-six,  or  a 
locomotive  and  train  of  cars,  thereby  acquires  a  special  property  in  the  things, 
and  is,  pro  hac  vice,  the  owner,  and  doing  his  own  business,  may  sound  plausible 
enough,  perhaps,  but  we  confess  it  seems  to  ua  unsound,  although  (juoted  from 
80  ancient  a  date  as  Rollers  Abridgment,  and  adopted  by  so  distinguished  a  judge 
as  Lord  Kenrjon. 

The  truth  is  the  whole  argument  is  only  a  specious  fallacy  ;  and  whether  Lord 
Kenyon  intended  really  to  say,  that  no  action  will  lie  against  the  master  in  such 
case,  or  only  to  say,  what  the  case  required,  that  the  master  is  not  liable  in  tres- 
pass, it  is  ver)'  obvious  the  proper  distinction,  in  regard  to  the  master's  liability, 
cannot  be  made  to  depend  upon  the  question  of  the  intention  of  the  servant. 
The  master  has  nothing  to  do,  either  way,  with  the  purpose  and  intention  of 
his  servants.     It  is  with  their  acts  that  he  is  to  be  affected,  and  if  these  come 


510       LIABILITY  FOR  CONTRACTORS,  AGENTS  AND  SUB-AGENTS.    CH.  XX. 

/' 

*  5.  Most  of  the  cases,  upon  the  subject  of  the  liability  of  railways, 
for  the  acts  of  their  officers,  agents  and  servants,  have  *  attempted 

within  the  range  of  their  employment,  the  master  is  liable,  whether  the  act  be  a 
misfeasance,  or  a  nonfeasance,  an  omission  or  commission,  carelessly  or  purposely 
done. 

It  will  happen,  doubtless,  that  when  the  master  is  under  a  positive  duty  to  keep 
or  carry  things  safely,  as  a  bailee,  or  to  carry  persons  safely,  that  while  he  will 
be  liable  for  the  mere  nonfeasance  of  the  servant,  the  servant  will  not  be  liable 
to  the  same  party  for  such  nonfeasance,  there  being  no  privity  between  the  ser- 
vant and  such  party,  no  duty  owing  to  such  person  from  the  servant.  But  in 
such  case  the  servant  will  be  liable  for  his  positive  wrongs,  and  wilful  acts  of  in- 
jury, and  the  master  is  also  liable  for  these  latter  acts,  but  not  in  trespass,  as  the 
servant  is  ordinarily,  but  in  case. 

And  so,  where  the  servant  goes  out  of  his  emplojTuent,  and  does  a  wrong,  as 
committing  an  assault  by  his  own  hands  upon  a  stranger,  or  stealing  goods,  or 
any  other  act  wholly  disconnected  with  his  emplojinent,  the  master  is  not  liable. 
This  is  the  view  taken  of  this  subject  by  Judge  Reeve.  Dom.  Rel.  358,  359,  360, 
and  it  is,  we  think,  the  only  consistent  and  rational  one,  and  the  one  which  must 
ultimately  prevail. 

It  is  virtually  adopted," in  regard  to  corporations,  in  England.  Queen  v.  Great 
North  of  England  Railway,  9  Q.  B.  315  (1846).  Lord  Denman,  Ch.  J.,  said: 
"It  is  as  easy  to  charge  one  person,  or  a  body  corporate,  with  erecting  a  bar 
across  a  public  road,  as  with  the  non-repair  of  it,  and  they  may  as  well  be 
compelled  to  pay  a  fine  for  the  act  as  the  omission.  State  v.  Vermont  Central 
Railw.,  27  Vt.  103;  Maund  v.  The  Monmouthshire  Canal  Co.,  4  M.  &  G.  452, 
where  it  is  held,  that  trespass  wiU  lie  against  a  corporation  for  the  act  of  its 
servant. 

This  is  familiar  law  in  the  American  courts.  And  it  is  not  deemed  of  any 
importance  that  the  agent  should  act  by  any  particular  form  of  appointment ; 
and  it  would  be  strange  if  the  liability  of  the  corporation  could  be  made  to 
depend  upon  the  intention  of  the  agent. 

This  distinction  is  not  claimed  to  be  of  any  importance  where  the  company 
owe  a  duty,  as  carriers  of  freight  or  passengers,  for  there  the  corporation  are 
liable  for  all  the  acts  of  their  servants ;  but  for  the  acts  of  their  servants  in 
regard  to  strangers,  it  has  been  claimed  there  is  no  liability  where  the  servant 
acts  wilfully,  unless  the  corporation  direct  or  affirm  the  act  of  the  servant. 

And  to  this  we  may  assent,  in  a  qualified  sense.  The  corporation  does  virtu- 
ally assent  to  all  the  acts  of  its  agents  and  servants,  done  in  the  regular  course 
of  their  employment.  A  railway  or  any  business  corporation  exists  and  acts 
only  by  its  agents  and  servants,  and  by  putting  them  into  their  places,  or  suffer- 
ing them  to  occupy  them,  the  company  consent  to  be  bound  by  their  acts. 
Thus,  a  conductor  or  engineer  of  a  railway,  while  he  acts  with  the  instruments 
which  the  company  put  into  his  hands  to  be  used  on  their  belialf,  upon  the  line 
of  their  road,  is  acting  instead  of  the  corporation,  and  his  acts  will  bind  the 
'corporation,  whether  done  negligently  or  cautiously,  heedlessly  or  purposely. 

It  would  present  a  remarkable  anomaly  upon  this  subject,  to  hold  the  company 
liable  for  cattle  killed  carelessly  upon  their  track,  but  not  liable  when  it  was 
*  612,  613 


§  130.       LIABIUTIEB  IN  BE6ARD   TO   AGENTS  AND   SERVANTS.  511 

to  carry  out  the  analogy  of  principal  and  agent,  or  *  master  and 
servant,  as  between  natural  persons,  and  to  apply  strictly  the 
principle  of  respandeat  superior.' 

done  purposely  by  the  engineer,  of  other  servants  or  the  company.  It  u  proba- 
bly true,  that  if  the  engineer  should  kill  cattle,  in  any  way  wholly  disconnected 
with  his  emplojTnent,  either  upon  the  land  of  the  company,  or  of  others,  the  com- 
pany could  not  be  made  liable ;  but  if  the  engineer  should  destroy  them  wilfully, 
by  rushing  the  engine  upon  them,  the  company  would  be  liable  undoubtedly,  if 
any  one  were,  of  which  there  can  be  little  question.  So  the  company  might  not 
be  liable  if  the  engineer  should  drive  the  engine  upon  another  road  and  there  do 
damage,  when  his  employment  extended  to  no  such  transaction. 

The  case  of  The  Southeastern  Railw.  v.  The  European  &  Am.  Telegraph 
Co.,  9  Exch.  363,  seems  to  have  adopted,  in  principle,  the  view  for  which 
we  contend.  The  act  here  complained  of  was,  boring  under  the  railway, 
and  it  was  held  the  company  had  no  right  to  do  so,  and  that  they  were  liable,  in 
trespass,  for  this  unauthorized  act  of  their  servants.  See  also  Sinclair  r.  Pearson, 
7  N.  H.  219,  227,  opinion  oi  Parker,  Ch.  J. ;  Phil.  &  Reading  Railw.  p.  Derby, 
14  How.  468,  483,  Orier,  J. ;  Case  of  the  Druid,  1  Wni.  Rob.  391,  opinion  of 
Dr.  Lnshington,  reviewing  the  cases. 

And  we  do  not  very  well  see  why  the  railway  is  not  liable  to  the  very  same 
action  which  the  8er\'ant  would  be,  because  his  act  is  the  act  of  the  corporation, 
within  the  range  of  his  employment,  as  running  over  ^heep  upon  the  track, 
in  Sharrod  v.  London  &  N.  W.  Railw.,  4  Exch.  580,  where  it  is  held  the 
action  must  be  case.  The  distinction  between  this  case  and  that  of  The  South- 
eastern Railw.  r.  The  European  &  Am.  Telegraph  Co.  is  not  very  obvious, 
unless  we  suppose  in  the  latter  case  a  vote  of  the  corporation,  which  is  highly 
improbable.  See  Phil.  Railw.  Co.  p.  Wilt,  4  Whart.  143,  where  it  is  said  the 
action  should  be  case,  and  that  trespass  will  not  lie  unless  the  act  is  done  by  the 
command  or  with  the  assent  of  the  corporation,  which  never  occurs.  Corpora- 
tions do  not  vote  such  acts.  A  vote  of  a  corporation  that  their  engineers  should 
run  their  engines  over  cattle  would  be  an  anomaly. 

In  Sleath  t.  Wilson,  9  C.  &  P.  607,  where  a  servant  had  been  driving  his 
master^s  carriage,  and  being  directed  to  return  to  the  stable,  or  while  that  was 
his  duty,  in  the  ordinarj'  course  of  his  employment,  he  went  out  of  his  way  with 
the  carriage,  to  do  some  errand  of  his  own,  and  drove  against  a  person  negli- 
gently ;  it  was  held  that  the  master  was  liable,  this  being  the  act  of  the  servant, 
in  the  course  of  his  employment,  because  the  injurj-  was  done  with  the  master's 
horses  and  carriage,  which  he  put  into  the  servant's  hands. 

But  here  the  servant  was  far  more  obviously  going  aside  of  his  emplo^inent. 


'  Sherman  t.  Rochester,  &c.  Railw.,  15  Barbour,  574,  577;  Vanderbilt  v. 
Richmond  T.  C,  2  Comst.  479.  In  this  last  case,  it  was  held  the  company  were 
not  liable  for  the  trespass  committed  by  its  servants,  although  directed  so  to  do 
by  the  president  and  general  agent  of  the  company,  he  having  no  authority  to* 
command  an  unlawful  act.  The  same  rule  is  laid  down  in  Lloyd  c.  Mayor  of 
New  York,  1  Selden,  369;  Ross  c.  Madison,  1  Carter  (Ind.),  281. 

♦614 


512     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

*  6.  But  they  seem  to  have  lost  sight  of,  or  not  sufficiently  to 
have  considered,  one  peculiarity  of  this  mode  of  transportation  of 
freight  and  passengers,  that  the  superior  is  virtually  always  present, 
in  the  person  of  any  of  the  employees,  within  the  range  of  the 
employment,  as  much  so  as  is  practicable  in  such  cases.     And  this 

than  in  the  supposed  cases  of  his  assuming  to  do  a  wilful  wrong  in  the  direct 
course  of  his  ordinary  employment. 

This  case  certainly  cannot  stand  with  the  argument  of  the  court,  1  East,  106. 
And  yet  it  is  confirmed  by  other  cases.  Joel  v.  Morrison,  6  C.  &  P.  501.  Any 
different  view  of  this  subject  will,  it  seems  to  us,  in  principle,  bring  us  back  to 
the  earlier  theory  of  the  relation  of  corporations  to  their  servants ;  that  corpora- 
tions are  not  liable  for  torts,  committed  by  their  servants,  they  having  no 
authority  to  bind  the  corporation  by  unlawfid  acts. 

There  is  an  elaborate  case  in  20  Maine,  41,  State  v.  Great  Works  Mill  & 
Manu.  Co.,  taking  precisely  the  old  view  of  the  liability  of  corporations  for  the 
acts  of  their  servants,  where  the  act  proves  unlawful.  But  most  of  the  later 
cases  hold  the  company  liable  for  the  torts  of  their  agents,  done  in  the  course  of 
the  agency. 

But  the  company  are  not  liable  for  injuries  to  persons  or  property'  through  the 
recklessness  and  want  of  common  care  and  prudence  of  such  persons,  or  prop- 
erty, as  where  a  slave  lay  down  to  sleep  upon  the  track  of  a  railway,  and  was 
run  over  by  a  train  of  cars,  it  not  being  possible  to  discover  such  slave  above 
twenty  feet,  on  account  of  the  grass  upon  the  track.  Felder  v.  Railw.  Co.,  2 
McMullan,  403. 

See  also  Mitchell  v.  Crassweller,  13  C.  B.  237 ;  s.  c.  16  Eng.  L.  &  Eq.  448; 
Leame  v.  Bray,  3  East,  593  ;  Claflin  ».  Wilcox,  18  Vt.  605,  where  the  principles  in- 
volved in  this  inquirj'are  examined.  Smith  v.  Birmingham  GasCo.,  1  Ad.  «&E11. 526. 

In  two  cases  in  Vol.  24  Conn.,  Crocker  v.  New  London,  W.  &  P.  Railw.,  249, 
and  Thames  Steamboat  Co.  v.  Housatonic  Railw.,  40,  the  general  proposition  is 
maintained,  that  railway  companies  are  not  liable  for  acts  done  without  the 
command  of  the  agent,  having  the  superior  control  in  that  department  of  the 
company's  business,  at  the  time,  and  out  of  the  range  of  the  particular  employ- 
ment of  the  servant  doing  the  act.  This  seems  to  us  a  sound  and  just  proposi- 
tion. See  also  Giles  v.  TaffVale  Railw.,  2  Ell.  &  Bl.  822;  Glover  ».  London 
&  North  W.  Railw.,  5  Exch.  66. 

It  is  said,  in  Illinois  Central  Railw.  ».  Downey,  18  111.  259,  that  case  cannot 
be  maintained  against  a  corporation  for  injuries  wilfully  and  intentionally  com- 
mitted by  its  servants,  and  not  occasioned  in  the  course  of  their  employment  in 
the  pursuit  of  their  regular  business.  The  judge,  in  lapng  down  the  proposition, 
seems  to  found  himself  upon  the  form  of  the  action.  But  if  any  action  will  lie 
against  a  corporation  for  the  wilful  misconduct  of  its  agents,  we  do  not  see  why 
it  may  not  be  the  same  ordinarily  brought  against  natural  persons  for  similar 
injuries.  But  the  proposition  laid  down  in  the  case  is  not  entirely  clear  or  per- 
spicuous. The  act  of  a  servant  may  be  in  the  direct  course  of  his  employment 
and  business,  and  still  be  wilful,  and  that  was  the  very  case  before  the  court,  if 
the  act  was  done  wilfully. 
*616 


§  130.      LIABILITIES   IN   REGARD   TO   AGENTS  AND  SERVANTS.  513 

consideration,  in  regard  to  natural  persons,  is  held  sufficient,  to 
make  the  superior  always  liable  for  the  act  of  the  subordinate, 
whether  done  negligently  or  wilfully.^ 

*  7.  And  although  the  cases  seem  to  treat  the  superior  as  always 
absent,  in  the  case  of  injuries  done  by  railways,  it  is  submitted, 
that  the  more  just  and  reasonable  rule  is,  to-  regard  the  principal 
as  always  present,  when  the  servant  acts  within  the  range  of  his 
employment.^ 

S.  This  distinction  is  of  no  importance  in  regard  to  the  liabiHty 
of  railways,  as  carriers  of  freight  and  passengers,  for  then  the  law. 
makes  the  company  liable  absolutely  in  one  case  and  in  the  other, 
as  far  as  care  and  diligence  can  effect  security.  Those  cases, 
therefore,  which  have  excused  corporations  as  bailees  of  goods  for 
hire,  when  they  were  purloined  by  their  servants,  it  would  seem 
are  necessarily  wrong.^** 

9.  But,  as  railways  are,  like  other  corporations,  mere  entities  of 
the  law,  inappreciable  to  sense,  we  do  not  see  why  this  abstraction 
should  not  be  regarded  as  always  existing  and  present  in  the  dis- 
charge of  its  functions.  It  is  indeed  a  mere  fiction,  whether  we 
regard  the  company  as  present  or  absent.  And  it  seems  more  just 
and  reasonable,  that  the  fiction  should  not  be  resorted  to,  to  excuse 
just  responsibility.  It  is  certain  we  never  require  proof  of  any 
organic  action  of  the  corporation,  to  constitute  railways  carriers 
of  freight  and  passengers.  All  that  is  required,  to  create  the  lia- 
bility, is  the  fact  of  their  assuming  such  offices.  So,  too,  for  the 
most  part,  in  regard  to  injuries  to  strangers  and  mere  torts,  it  is 
not  expected  that  proof  will  be  given  of  any  express  authority  to 
the  servant  or  employee  to  do  the  particular  act." 

'  Morse  v.  The  Auburn  &  Syr.  Railw.  Co.,  10  Barb.  621 ;  Vanegrift ».  Railw., 
2  N.  J.  185,  188.  See  also  Burton  r.  Philadelphia,  &c.  Railw.,  4  Harring. 
(Del.)  252. 

'  Chandler  v.  Broughton,  1  Crompton  &  !M.  29.  In  this  case  it  is  held,  that 
if  the  master  is  present,  although  passive,  he  is  liable  for  the  wilful  act  of  his 
servant.     M'l^ughlin  r.  Pryor,  1  Car.  &  M.  354. 

'**  Foster  v.  The  Essex  Bank,  17  Mass.  479,  510.  Trespass  will  lie  against  a 
railway  company.     Crawfordsville  Railw.  v.  Wright,  5  Ind.  252. 

"  Lowell  V.  Boston  &  Lowell  Railw.,  23  Pick.  24.     Numerous  cases  upon  the 

subject  of  the  liability  of  railways  show  this  practically.     Where  the  company 

begins  to  run  trains  before  condemning  the  land  to  their  use,  it  is  seldom  that 

the  act  of  running  them  is  traceable  directly  to  the  corporation,  except  as  the 

.  act  of  the  employees.     This  is  always  done  by  design,  and  never  any  doubt  was 

.  entertained  that  the  company  are  liable,  and  in  trespass,  to  the  land-owner, 

38  ♦sie 


514     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

*  10.  What  shall  amount  to  a  ratification  of  the  acts  of  its  agent 
by  the  stockholders  of  the  corporation,  so  as  to  give  an  authority 
not  expressly  conferred,  or  one  not  intended  to  have  been  conferred, 
or  even  where  the  formal  act  of  the  corporation  was  a  denial  of 
the  authority,  has  been  a  good  deal  discussed,  and  is  not,  perhaps, 
susceptible  of  a  specific  definition.  The  question  is  discussed  and 
the  authorities  examined  in  Cumberland  Coal  Company  v.  Sher- 
man.^ 

11.  And  it  seems  to  be  settled,  both  in  this  country  and  in 
England,  that  a  corporation  may  become  responsible  for  the  pub- 
lication of  a  libel.  In  the  English  case,^^  a  railway  company  were 
held  responsible  for  telegraphing  along  their  line,  that  the  plaintiffs, 
who  were  bankers,  had  stopped  payment.  Lord  Campbell  said : 
The  allegation  of  malice  "  may  be  proved  by  showing  that  the 
publication  of  a  libel  took  place  by  order  of  the  defendants,  and 
was  therefore  wrongful,  although  the  defendants  held  no  ill  will  to 
the-  plaintiffs,  and  did  not  mean  to  injure  them."  And  the  leading 
American  case  ^*  decides  that  a  railway  may  be  liable  for  a  libel 

which  could  not  be  the  case  upon  the  strict  analogies  referred  to  in  note  (6) , 
unless  the  corporation  were  regarded  as  present,  and  assenting  to  the  act.  Ha- 
zen  V.  Boston  &  Maine  Railw.,  2  Gray,  574 ;  Eward  v.  Lawrenceburg  &  Upper 
Mis.  Railw.,  7  Porter  (Ind.),  711 ;  Hall  v.  Pickering,  40  Maine,  648. 

The  rule  laid  down  upon  this  subject  by  Lord  Benman,  Ch.  J.,  in  a  case  which, 
although  a  trial  at  Nisi  Prius,  seems  to  have  been  examined  and  acquiesced  in 
by  all  the  judges  of  K.  B.,  Rex  v.  Medley,  6  C.  &  P.  292,  certainly  exhibits  the 
sagacity  and  wisdom  of  its  author. 

That  is  the  case  of  an  indictment  against  the  directors  of  a  gas  company  for 
the  act  of  the  company's  superintendent  and  engineer,  in  conveying  the  refuse 
gas  into  a  great  public  river,  whereby  the  fish  are  destroyed,  and  the  water  ren- 
dered unfit  for  use,  &c.,  thereby  creating  a  public  nuisance.  No  distinction  is 
attempted,  or  could  fairly  be  made  here  between  the  liability  of  the  company 
and  that  of  the  directors. 

The  court  held  the  directors  liable  for  an  act  done  by  their  superintendent 
and  engineer,  under  a  general  authority  to  manage  the  works,  though  they  were 
personally  ignorant  of  the  particular  plan  adopted,  and  though  such  plan  was  a 
departure  from  the  original  and  understood  method,  which  the  directors  had  no 
reason  to  suppose  was  discontinued. 

The  learned  judge  uses  this  significant  language,  which  fully  justifies  all  we 
contend  for:  "It  seems  to  me  both  common  sense  and  law,  that  if  persons,  for 
their  own  advantage,  employ  servants  to  conduct  works,  they  must  be  answerable 
for  what  is  done  by  those  servants." 

»  30  Barb.  653. 

"  Whitefield  v.  Southeast.  Railw.  Co.,  Ellis,  Blackb.  and  Ellis,  115. 

"  Philadelphia,  Wil.  &  Bait.  RaUw.  v.  Quigley,  21  How.  (U.  S.)  202. 
♦  617 


§  130.      LIABILITIES  IN  REGARD  TO   A0ENT8   AND  SERVANTS.  615 

published  and  circulated  in  their  reports,  wherein  they  represented 
the  plaintiff  as  an  incompetent  *  mechanic  and  builder  of  bridges, 
station-houses,  and  other  structures,  and  wanting  in  all  requisite 
capacity  and  skill  for  such  employment.  The  court  held  that,  in 
the  absence  of  express  malice  or  bad  faith,  the  report  to  the  stock- 
holders is  a  privileged  communication,  but  the  privilege  does  not 
extend  to  the  publication  of  the  report  and  evidence  in  a  book  for 
distribution  among  the  persons  belonging  to  the  corporation  and 
others,  and  so  far  as  the  corporation  authorized  the  publication  in 
the  form  employed  they  are  responsible  in  damages. 

12.  It  is  well  settled,  that  corporations  have  no  powers  except 
such  as  are  conferred  by  their  charters,  or  incidentally  requisite 
to  carry  into  effect  the  purposes  of  their  charters.  HenCe  it  was 
held,  that  a  charter  to  build  a  road  to  the  top  of  a  mountain  and 
take  tolls  thereon,  does  not  warrant  the  company  in  purchasing 
horses  and  carriages  and  establishing  a  stage  route.  Nor  does 
an  additional  act  for  erecting  and  leasing  buildings  for  the  ac- 
commodation of  the  business  of  the  company  or  others  on  the 
road  have  that  effect.  And  an  agent  can  do  no  act  not  within 
the  corporate  powers,  nor  can  the  corporation  ratify  any  such 
act.^ 

13.  Where  the  statute  requires  the  directors  of  a  corporation  to 
certify  the  fact  of  the  capital  stock  being  paid  into  the  treasury 
in  cash,  and  this  is  done,  when  in  fact  the  payment  was  made  in 
property  of  uncertain  value,  such  certificate  is  false,  and  the 
directors  responsible  for  the  debts  of  the  company  under  the 
statute,  imposing  that  penalty  for  making  a  false  certificate  in 
that  respect.^* 

14.  A  gas  company,  chartered  for  the  purpose  of  lighting  the 
streets  and  buildings  of  a  town,  is  not  obliged  to  supply  gas  to  all 
persons  having  buildings  on  the  line  of  their  pipes,  upon  being 
tendered  reasonable  compensation.^^ 

15.  In  one  case  ^^  it  is  said  the  company  are  responsible  for  a 

"  Downing  r.  Mount  Washington  Road  Co.,  40  N.  H.  230. 

'•  Waters  v.  Quimby,  3  Dutcher,  198. 

"  Paterson  Gas  Light  Co.  r.  Brady,  3  Dutcher,  245. 

"  Goff  p.  Great  Northern  Railw.  Co.,  3  El.  &  El.,  672 ;  8.  c.  7  Jur.  N.  S.  286. 
But  where  the  station  master  ordered  the  owner  of  a  horse  into  custody  till  it  could 
be  ascertained  if  his  claim  that  the  horse  was  to  be  carried  free  of  charge  were  well 
founded,  it  was  held  that,  as  there  could  be  no  pretence  of  the  company  having  any 
claim  to  make  any  such  arrest,  they  could  not  be  held  liable  for  what  was  so  mauifest- 

♦518 


516     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

false  imprisonment  committed  by  its  agents,  and  no-  authority 
under  seal  is  requisite  ;  but  there  must  be  evidence  justifying  the 
jury  in  finding  that  the  company's  servants  who  did  the  act  *  had 
authority  from  the  company  to  do  so.  In  this  case  the  plaintiff 
had  been  taken  into  custody  by  the  servants  of  the  company,  and 
by  direction  of  the  superintendent  of  the  line,  carried  before  a 
magistrate,  and  charged  with  an  attempt  to  travel  in  one  of  the 
company's  carriages  without  having  first  paid  his  fare  and  pro- 
cured a  ticket.  The  fact  was,  he  had  paid  his  fare  and  procured  a 
ticket  and  mislaid  it  at  home,  and,  by  mistake,  taken  another 
ticket  accidentally  laid  in  the  same  place.  He  explained  the  trans- 
action to-  the  company's  servants,  and  declined  to  pay  fare  again, 
because  he  had  not  the  means,  but  offered  to  pawn  some  of  the 
tools  of  his  trade  which  he  had  with  him.  The  court  held,  that, 
as  some  one  must  have  authority  to  act  for  the  company  in  such 
emergencies,  the  superintendent  of  the  line  must  be  regarded  as 
having  that  authority.  The  jury  gave  a  verdict  for  the  plaintiff  for 
<£50  damages,  and  the  court  declined  to  interfere  on  the  ground 
that  they  were  excessive.  The  wonder  is  that  any  one  should 
have  had  any  hesitation  in  regard  to  the  acts  of  the  agents  who 
thus  acted  in  matters  representing  the  company.  It  should 
be  considered  in  all  cases,  that  where  a  servant  of  any  corpo- 
ration does  any  act  coming  fairly  within  the  scope  of  the 
business  intrusted  to  him,  it  must  be  held  binding  upon  the 
company. 

16.  It  seems  to  be  considered  that  railway  companies  may  be 
responsible  where  injury  to  passengers,  or  others  rightfully  there, 
occurs  in  consequence,  for  allowing  a  dangerous  animal  to  remain 
about  their  stations  after  they  have  sufficient  knowledge  of  its 

ly  a  mere  tort  of  the  servant.  Poulton  v.  London  &  S.  W.  Railw.,  Law  Rep. 
2  Q.  B.  534;  But  where  the  servant  of  a  railway  company  does  an  act  of  force 
towards  another,  in  the  due  course  of  his  employment,  or  under  discretionary 
authority  from  the  company,  as  in  expelling  a  passenger  from  their  cars  for  not 
paying  fare,  under  a  mistake  of  the  fact,  or  with  needless  violence,  the  company 
is  responsible,  and  the  action  may  be  against  the  servant  and  corporation  jointly. 
Moore  v.  Fitchburg  Railw.,  4  Gray,  465.  But  the  president  of  the  company  is 
not  liable  in  such  case  for  merely  transmitting  the  general  authority  of  the  corpo- 
ration to  the  servant,  but  would  be  if  he  originated  the  particular  order.  Hewett 
V.  Swift,  et  als.,  3  Allen,  420.  See  St.  John  v.  Eastern  Railw.,  1  Allen,  544. 
So,  too,  the  company  is  responsible  for  any  negligence  or  misconduct  of  its 
servants,  in  the  course  of  their  employment,  in  assisting  passengers  to  alight  from 
the  cars.  Drew  v.  Sixth  Avenue  Railw.,  40  N.  Y.  (3  Keyes)  429. 
•519 


§131. 


INJURIES   BY   FELLOW-SERVANTS. 


617 


vicious  propensities.  But  the  fact  that  a  stray  dog  had  torn  tiie 
dress  of  one  passenger  a  few  hours  before,  and  attacked  a  cat  soon 
after,  and  been  driven  from  the  station  by  the  servants  of  the  com- 
pany, and  soon  after  returned  and  bit  the  plaintiff,  will  not  be 
sufficient  to  render  the  company  responsible.*^  But  where  injury 
occurred  from  the  bite  of  a  dog  kept  about  the  stables  of  a  horse 
railway  company,  by  a  person  employed  by  them  and  having  charge 
of  their  stables,  and  with  the  knowledge  and  implied  assent  of 
their  superintendent,  it  was  held  that  the  company  might  properly 
be  regarded  as  the  keeper  of  the  dog,  and  responsible  under  the 
statute  for  double  the  damages  sustained  by  the  bite.* 

17.  The  general  manager  of  a  railway  has  authority  to  bind  the 
company  to  pay  for  medical  attendance  on  a  servant  of  the  com- 
pany, injured  by  an  accident,  in  their  employment.^^ 


•SECTION  III 


Ir^uriea  to  Servants,  by  neglect  of  Fdhw-Servants,  and  use  of 

Machinery, 


1.  In  general  no  such  cause  of  action  exists 

against  company. 

2.  But  if  there  is  any  fault  in   employing 

unsuitable  servants,  or  machinery,  they 

are  liable. 
8.   But  not  liable  for  deficiency  ofhdp  or  for 

not  fencing  road. 
4.   Has  been  questioned  whether  rule  applies 

to  servants  of  different  grades. 
&  Rule  not  adcipted  in  some  states.     Case  of 

Slaves.     Scotland. 

6.  No  implied  contract,  by  ship-owners,  that 

ship  is  seaworthy. 

7.  But  rule  does  not  apply  where  servant  has 

no  connection  with  the  particular  work. 
n.  9.  Cases  reviewed  in  England,  Scotland, 
and  America, 


8.  Recent  English  case  illustrating  the  Eng- 
lish doctrine. 

9.  Statement  of  the  law  in  Kentucky  and 

review  of  the  subject. 

10.  Subject  reviewed  by  Chief  Justice  Shaw. 

11.  Company  may  show  in  excuse,  that  the 

damage  accrued  from  the  servant  dis- 
regarding his  instructions. 

12.  lite  servants  of  one  company,  notfellouh 

servants  with  those  of  another  company, 
using  the  same  station,  where  the  injury 
occurred. 
18.  The  fact  that  the  injury  occurred  by 
reason  of  the  intoxication  of  a  fellow- 
servant,  and  that  his  being  an  habitual 
drunkard  uxis  known,  or  ought  to  have 
been,  by  the  company,  tends  to  show  ad' 
pable  neglect  on  their  part. 


§  131.  1.  It  seems  to  be  now  perfectly  well  settled  in  England, 
and  mostly  in  this  country,  that  a  servant,  who  is  injured  by  the 

•»  Smith  r.  Great  Eastern  Railw.,  Law  Rep.  2  C.  P.  4. 
*>  Barrett  v.  Maiden  &  Melrose  Railw.,  3  Allen,  101. 
«?  Walker  v.  Great  Western  Railw.,  Law  Rep.  2  Exchequer,  228. 

•620 


518     LIABILITY  FOB  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

negligence  or  misconduct  of  his  fellow-servant,  can  maintain  no 
action  against  the  master  for  such  injury.^ 

2.  But  it  seems  to  be  conceded,  that  if  there  be  any  fault  in  the 
selection  of  the  other  servants,  or  in  continuing  them  in  their 
places,  after  they  have  proved  incompetent,  perhaps,  or  in  the 
employing  unsafe  machinery,  the  master  will  be  answerable  for  all 
injury  to  his  servants,  in  consequence.'^ 

'  Priestly  V.  Fowler,  3  M.  &  W.  1 ;  Hutchinson  v.  York,  Newcastle  &  Ber- 
wick Railw.,  5  Exch.  343 ;  Wigmore  v.  Jay,  5  Exch.  354 ;  Skip  v.  Eastern  Coun- 
ties Railw.,  24  Eng.  L.  &  Eq.  396  (1853)  ;  Farwell  v.  Bos.  &  W.  Railw.,  4  Met. 
49 ;  ^Murray  r.  South  C.  Railw.,  1  McMuUan,  385 ;  Brown  r.  Maxwell,  6  Hill 
(N.  y.),  592;  Coon  v.  Sy.  &  Utica  Railw.,  6  Barb.  231 ;  8.  c.  1  Selden,  492; 
Hayes  r.  Western  Railw.,  3  Cush.  270;  Sherman  v.  Roch.  &  Sy.  Railw.,  15 
Barb.  574;  McMillan  v.  Railroad  Co.,  20  Barb.  449;  Honner  v.  The  Illinois 
Central  Railw.,  15  111.  550;  Ryan  v.  Cumberland  Valley  Railw.,  23  Penn.  St. 
384;  King  v.  Boston  &  Worcester  Railw.,  9  Cush.  112 ;  Madison  &  I.  Railw.  v. 
Bacon,  6  Porter  (Ind.),  205.  The  same  rule  prevails  in  Virginia.  Hawley  v. 
Baltimore  &  Ohio  Railw.,  6  Am.  Law  Reg.  352. 

»  Shaw,  Ch.  J.,  4  Met.  49,  57;  Keegan  ».  Western  Railw.,  4  Selden,  175. 
But  it  makes  no  difference  in  regard  to  the  liability  of  the  company  that  the 
person  came  into  the  service  voluntarily,  to  assist  the  servants  of  the  company 
in  a  particular  emergency,  and  was  killed  by  the  negligence  of  some  of  the 
servants.  Degg  v.  Mid.  Railw.  Co.,  1  H.  &  N.  773.  It  is  said,  McMillan  v. 
Saratoga  &  Wash.  R.,  20  Barb.  449,  that  the  servant,  in  order  to  entitle  himself 
to  recover  for  injuries  from  defective  machinerj',  must  prove  actual  notice  of 
such  defects  in  the  master.  But  culpable  negligence  is  sufficient,  undoubtedly, 
and  that  is  such  as,  under  the  circumstances,  a  prudent  man  would  not  be  guilty 
of.  Post,  note  10,  §  170.  But  if  the  servant  knew  of  the  defects,  and  did  not 
inform  the  master,  or  if  the  defects  were  known  to  both  master  and  servant,  and 
the  servant  makes  no  objection  to  continue  the  service,  he  probably  could  not 
recover  of  the  master  for  any  damage  in  consequence.  But  if  the  master  know 
of  the  defect,  and  direct  the  servant  to  continue  the  service,  in  a  prescribed 
manner,  he  is  responsible  for  the  consequences.  Mellors  v.  Shaw,  7  Jur.  N.  S. 
845.  Where  the  defendants  were  joint  owners  and  workers  of  a  coal-mine,  and 
one  of  their  employees  was  injured  by  a  defect  in  the  machiner}-,  and  it  ap- 
peared that  one  of  the  defendants  personally  interfered  in  the  management 
of  the  colliery,  and  the  jury  found  that  defendant  guilty  of  personal  negligence, 
it  was  held  sufficient  to  implicate  both  defendants,  as  they  must  be  presumed  to 
have  known  that  improper  machinery  was  being  employed.  Ashworth  t?.  Stan- 
wix,  30  L.  J.  Q.  B.  183.  But  see  Wright  ».  N.  Y.  Central  Railw.,  28  Barb.  80. 
Post,  n.  3,  20.  Morgan  v.  Vale  of  Neath  Railw.,  L.  R.  1  Q.  B.  149.  The  com- 
pany was  held  responsible  for  an  injury  to  one  of  its  servants  caused  by  want 
of  repair  in  the  road-bed.  Snow  v.  Housatonic  Railw.,  8  Allen,  441.  But  the 
company  cannot  be  held  as  guarantors  to  its  servants  that  the  structures  con- 
tinue in  proper  condition.  If  originally  properly  built  and  properly  inspected, 
from  time  to  time,  it  is  all  that  can  be  required.     As,  for  instance,  if  a  servant 


§  131.  INJURIES  BY  FELLOW-SERVANTS.  619 

*  III  Frazier  v.  The  Pennsylvania  Railway  Company,'  it  was 
held,  that  if  the  company  knowingly  or  carelessly  employ  a  rash 
or  incompetent  conductor,  whereby  the  brakeman  on  the  train  is 
injured,  the  company  are  responsible  for  the  injury ;  that  the  act 
of  the  agent  of  the  company  having  charge  of  employing  such 
agents  or  servants,  and  of  dismissing  them  for  incompetency,  is 
*  the  act  of  the  company  ;  but  the  company  are  not  responsible  for 
such  injury,  unless  they  were  in  fault  in  employing  or  continu- 
ing the  conductor  in  their  service ;  that  the  character  of  such 
conductor  for  skill  and  faithfulness  may  be  shown  by  general 
reputation.  The  master  is  not  in  general  bound  to  use  any 
special  precautions  to  secure  the  servant  from  injury  in  regard  to 
matters  equally  within  the  knowledge  of  both.*  But  the  master 
is  liable  for  all  injuries  accruing  to  his  servants  from  his  own 
personal  negligence ;  and  this  may  consist  in  personal  interfer- 
ence in  the  particular  matter  causing  the  injury,  or  by  negligently 
retaining  incompetent  servants,  producing  the  injury.^  But  a 
railway  company  is  liable  in  damages  for  an  injury  resulting  to 
any  person  lawfully  using  its  road,  from  its  neglect  to  introduce 
any  improvement  in  its  machinery  or  apparatus,  which  is  known 

is  killed  by  the  falling  of  a  bridge,  properly  constructed,  and  carefully  inspected 
the  day  before,  the  company  is  not  responsible.  Faulkner  v.  Erie  Railw.,  49 
Barb.  324 ;  Warner  v.  Same,  8  Am.  Law  Reg.  N.  S.  209. 

And  if  the  master  use  reasonable  precautions  and  efforts  to  procure  safe  and 
skilful  servants,  but,  without  fault,  happen  to  have  one  in  his  employ  through 
whose  incompetency  damage  occurs  to  a  fellow-servant,  the  master  is  not 
liable.  Tarrant  r.  Webb,  18  C.  B.  797.  In  Dj-nen  r.  Leach,  26  Law  J.  N. 
S.,  Exch.  221,  it  was  decided,  that  where  an  injury  happens  to  a  servant 
in  the  use  of  machinery',  in  the  course  of  his  employment,  of  the  nature 
of  which  he  is  as  much  aware  as  his  master,  and  the  use  of  which  is  the  proxi- 
mate cause  of  the  injury,  the  servant  cannot  recover,  nor,  if  death  ensues,  can 
his  personal  representative  recover  of  the  master,  there  being  no  evidence  of 
any  personal  negligence  on  his  part,  conducing  to  the  injur)'.  Nor  does  it  vary 
the  case  that  the  master  has  in  use  in  his  works  an  engine,  or  machine,  less  safe 
than  some  other  which  is  in  general  use,  or  that  there  was  another  and  safer 
mode  of  doing  the  business,  which  had  been  discarded  by  his  orders. 

And  in  Assop  r.  Yates,  2  H.  &  N.  768,  it  was  held,  that  if  the  servant  knew 
of  the  exposure,  and  consented  to  continue  the  service,  and  suffered  damage,  he 
could  not  recover  of  the  master  for  any  negligence  which  might  have  contribated 
to  the  result. 

»  38  Penn.  St.  104 ;  Wright  v.  N.  Y.  Central  RaUw.  Co.,  28  Barb.  80;  Carle 
V.  B.  &  P.  Canal  and  R.  R.  Co.,  43  Me.  269. 

*  Se}-mour  c.  Maddox,  16  Q.  B.  326. 

*  Ormond  v.  Holland,  1  £1.  Bl.  &  £1.  102. 

•  621,  622 


620     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

to  have  been  tested,  and  found  materially  to  contribute  to  safety, 
and  the  adoption  of  which  is  within  its  power  so  as  to  be  leason- 
ably  practicable.^  But  in  another  case,^  in  an  action  by  a  ser- 
vant against  his  master  for  injuries  sustained  by  the  explosion  of 
a  steam-boiler  used  in  his  business,  the  plaintiff  introduced  evi- 
dence without  objection,  that  there  was  no  such  fusible  safety- 
plug  on  the  boiler  as  was  required  by  statute ;  and  the  presiding 
judge  excluded  evidence  of  a  custom  among  engineers  not  to  use 
such  a  plug,  and  instructed  the  jury  that  if  the  defendant  know- 
ingly used  the  boiler  without  the  plug,  and  the  want  of  it  caused 
the  accident,  the  plaintiff  was  entitled  to  recover,  and  refused  to 
instruct  them  that  if  the  defendant  used  all  the  appliances  for 
safety  that  were  ordinarily  used  in  such  establishments,  he  was 
not  liable,  although  he  did  not  use  the  fusible  plug  required  by 
statute,  and  it  was  held  the  defendant  had  no  ground  of  exception. 
It  is  here  declared  by  the  court  that  ordinary  care  must  be  meas- 
ured by  the  character  and  risks  and  exposures  of  the  business, 
and  the  degree  of  care  required  is  higher  when  life  or  limb  is 
endangered,  or  a  large  amount  of  property  is  involved,  than  in 
other  cases. ^ 

*  3.  But  the  company  are  not  liable  because  there  was  a  defi- 
ciency of  help  at  that  point.^  And  a  neglect  in  the  company  to 
fence  their  road,  whereby  the  engine  was  thrown  from  the  track, 
by  coming  in  contact  with  cattle  thus  enabled  to  come  upon  the 
road,  and  a  servant  of  the  company  so  injured  that  he  died,  will 
not  render  them  liable.^^ 

4.  But  it  has  been  questioned  whether  the  rule  has  any  just 
application  to  servants  in  different  grades,  who  are  subordinated 
the  one  to  the  other.^^    But  as  the  ground  upon  which  the  rule 

8  Smith  V.  N.  Y.  &  Harlem  Railw.  Co.,  19  N.  Y.  127. 
'  Cayzer  v.  Taylor,  10  Gray,  274. 

*  Post,  Common  Carriers  of  Passengers.  See  also  Briggs  v.  Taylor,  28  Vt. 
180,  184. 

"  Skip  r.  Eastern  Counties  Railw.,  9  Exch.  223;  Hayes  ».  Western  Railw., 
3  Cush.  270. 

'0  Langlois  v.  Buf.  &  Roch.  R.  19  Barb.  364. 

"  Gardiner,  J.,  in  Coon  v.  Sy.  &  Utica  Railroad  Co.,  1  Seld.  492:  8.  c.  6 
Barb.  231.  But  in  Gillshannon  r.  Stony  Brook  Railw.,  10  Cush.  228,  it  was 
held  to  make  no  difference  that  the  servants  were  not  in  a  common  employment. 
This  was  the  case  of  a  laborer  riding  upon  a  gravel  train  to  the  place  of  his  em- 
ployment, and  injured  by  the  negligence  of  those  in  charge  of  the  train.  In 
Wilson  0.  Merry,  Law.  Rep.  1  H.  Lds.  326,  it  was  decided,  that  a  master  is  notre- 
♦623 


§  181.  INJURIES  BY   PELLOW-SERVANTS.  621 

is  attempted  to  be  maintained  is  one  of  policy  chiefly,  that  it 
is  better  to  tlirow  the  hazard  upon  those  in  whose  power  it  is  to 
guard  against  it,  it  seems  very  questionable  how  far  any  such 
distinction  is  maintainable.  It  has  been  attempted  in  a  good 
many  cases,  but  does  not  seem  to  have  met  with  favor. 

5.  And  the  rule  itself  has  been  denied  in  some  cases,  in  this 
country,  after  very  elaborate  consideration.^*  And  it  has  been 
*  held  not  to  apply  to  the  case  of  slaves,^^  especially  where  the  em- 
ployer stipulated  not  to  employ  them  about  the  engines  and  cars, 
unless  for  necessary  purposes  of  carrying  to  places  where  their 
services  were  needed,  and  they  were  carried  beyond  that  point, 
and  killed  in  jumping  from  the  cars.'*    The  Court  of  Sessions  in 

ponsible  for  injurj'  to  a  servant  caused  by  the  negligence  of  a  fellow-servant,  by 
the  mere  fact  that  the  latter  is  of  a  higher  grade,  &s  a  superintendent,  s.  r.,  Fel- 
tham  r.  England,  L,  R.  2  Q.  B.  33.  But  in  Haynes  v.  East  Tenn.  &  Ga.  llailw,,  3 
Coldwell,  222,  a  somewhat  different  view  was  taken,  the  company  being 
held  responsible  for  an  injury  to  one  of  the  subordinate  servants  of  the  com- 
pany by  the  carelessness  of  the  superintendent  in  starting  a  train  at  an  unusual 
hour. 

"  Little  Miami  Railw.  v.  Stevens,  20  Ohio,  415 ;  C.  C.  &  C.  Railroad  Co. 
r.  Keary,  3  Ohio  N.  S.  202.  These  cases  are  placed  mainly  upon  the  ground  of 
the  person  injured  being  in  "a  subordinate  position.  It  was  held  the  rule  did  not 
apply  to  day  laborers  upon  a  railway,  who  were  not  under  any  obligation  to 
renew  their  work  from  day  to  day,  where  one,  after  completing  his  day's  work, 
was  injured  through  the  negligence  of  the  conductor  of  one  of  the  company's 
trains,  upon  which  he  was  returning  home,  free  of  charge,  but  as  part  of  the 
contract  upon  which  he  worked.  Russell  v.  Hudson  River  R.,  6  Duer,  39.  And 
in  Whaalan  r.  M.  R.  &  Lake  Erie  Railw.,  8  Ohio  N.  S.  249,  it  was  held  that  where 
one  of  the  employees  of  a  railway,  engaged  in  making  repairs  upon  its  track, 
was  injured  by  the  neglect  of  a  fireman  upon  one  of  the  trains,  there  was  no 
such  subordination  in  regard  to  their  duty  as  to  justify  any  departure  from  the 
general  rule  of  excusing  the  master.  See  also  Indianapolis  Railw.  r.  Love,  10 
Ind.  554 ;  Same  r.  Klein,  11  Ind.  38.  In  Hard,  AdmV  v.  Vt.  &  Canada  Railw., 
32  Vt.  473,  the  plaintiff's  intestate,  who  was  an  engineer  on  the  defendant's  road, 
was  killed  by  the  explosion  of  a  locomotive  engine  which  he  was  running,  which 
occurred  by  the  neglect  of  the  company's  master-mechanic  in  not  keeping  the 
machine  in  repair.  It  was  his  duty  to  superintend  and  direct  the  repairs  upon 
the  engines.  Tlie  directors  of  the  company  were  not  guilty  of  any  neglect  in 
furnishing  the  road,  in  the  first  instance,  with  suitable  machinery  and  competi-nt 
employees,  and  they  were  ignorant  of  any  defect  in  this  engine.  The  company 
were  held  not  responsible  for  the  death  of  plaintiff's  intestate,  on  the  ground 
that  under  the  circumstances  the  injury  must  be  considered  as  occurring  from 
the  neglect  of  a  fellow-Kervant,  employed  in  the  same  common  business. 

"  Scudder  v.  Woodbridge,  1  Kelly,  195. 

"  Duncan  r.  Railroad  Co.,  2  Richardson,  613. 

•624 


522     LIABIUTT  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

Scotland,  too,  seems  to  have  dissented  from  the  English  rule 
upon  this  subject.^* 

"  Dizon  V.  Ranken,  1  Am.  Railw.  C.  669.  The  remarks  of  Lord  Cockbum 
are  pointed  and  pertinent.  "  The  English  decisions  certainly  seem  to  determine 
that  in  England,  where  a  person  is  injured  by  the  culpable  negligence  of  a  ser- 
vant, that  servant's  master  is  liable  in  reparation,  provided  the  injured  person 
was  one  of  the  public,  but  that  he  is  not  responsible  if  the  person  so  injured 
happened  to  be  a  fellow-workman  of  the  delinquent  servant.  It  is  said,  as  an 
illustration  of  this,  that  if  a  coachman  kills  a  stranger  by  improper  driving,  the 
employer  of  the  coachman  is  liable,  but  that  he  is  not  liable  if  the  coachman  only 
kills  the  footman.  If  this  be  the  law  of  England,  I  speak  of  it  with  all  due  re- 
spect, it  most  certainly  is  not  the  law  of  Scotland.  I  defy  any  industry  to  pro- 
duce a  single  decision  or  dictum,  or  institutional  indication,  or  any  trace  of  any 
authority  to  this  effect,  or  of  this  tendency,  from  the  whole  range  of  our  law. 
If  any  such  idea  exists  in  our  system,  it  has,  as  yet,  lurked  undetected.  It  has 
never  been  directly  condemned,  because  it  has  never  been  stated." 

After  citing  numerous  cases  in  their  Reports,  where  the  question  was  involved 
but  not  raised,  his  lordship  continues :  "The  new  rule  seemed  to  be  recommended 
to  us,  not  only  on  account  of  the  respect  due  to  the'foreign  tribunal, — the  weight 
of  which  we  all  acknowledge,  —  but  also  on  account  of  its  own  inherent  justice. 
This  last  recommendation  fails  with  me,  because  I  think  that  the  justice  of  the 
thing  is  exactly  in  the  opposite  direction.  I  have  rarely  come  upon  any  prin- 
ciple that  seems  less  reconcilable  with  legal  reason.  I  can  conceive  some 
reasoning  for  exempting  the  employer  from  liability  altogether,  but  not  one  for 
exempting  him  only  when  those  who  act  for  him  injure  one  of  themselves.  It 
rather  seems  to  me  that  these  are  the  verj'  persons  who  have  the  strongest  claim 
upon  him  for  reparation,  because  they  incur  danger  on  his  account,  and  certainly 
are  not  understood  by  our  law  to  come  under  any  engagement  to  take  these  risks 
on  themselves." 

But  the  English  cases  certainly  do  regard  the  servant  as  impliedly  stipulating 
to  run  these  risks  when  he  enters  into  the  service.  The  remarks  of  the  learned 
judge  above  ought  not  perhaps  to  be  regarded  as  of  any  inherent  weight  here, 
beyond  the  mere  force  of  the  argument,  and  it  is  always  to  be  regretted  that  any 
difference  of  decision  should  exist  among  the  tribunals  of  the  different  states 
upon  a  subject  of  so  much  practical  moment.  The  great  preponderance  of  au- 
thority in  this  country  is  undoubtedly  in  favor  of  the  English  rule :  but  we  could 
not  forbear  to  state,  that  we  have  always  had  similar  difficulties  to  those  stated 
by  his  lordship,  in  regard  to  the  justice  or  policy  of  the  rule.  When  these  cases 
go  by  appeal  to  the  House  of  Lords,  they  are  determined  according  to  the  rule 
of  the  Scottish  law.  Marshall  v.  Stewart,  33  Eng.  L.  &  Eq.  1.  Opinion  of 
Crcmworth,  Chancellor. 

But  see  the  verj'  lucid  and  conArincing  argument  of  Shaw,  Ch.  J.,  in  Farwell 
r.  Boston  &  Wor.  Railw.,  4  Met.  49,  56 ;  s.  c.  1  Am,  R.  C.  339 ;  and  the  most 
ingenious  attempt  at  reductio  ad  abstirdutn  upon  the  subject  by  Lord  Abinger,  Ch. 
B.,  in  Priestly  v.  Fowler,  3  M.  &.  W.  1,  6,  7,  where  the  learned  Ch.  B.,  among 
other  ingenious  speculations,  supposes  some  fearful  consequences  might  follow  if 
the  master  were  to  be  held  liable  for  the  negligence  of  the  chambermaid  in  put- 
ting the  servant  into  wet  sheets  ! 


§  131.  INJURIES   BY   FELLOW-SERVANTS.  623 

*  6.  But  it  has  been  held,  that  there  is  no  implied  obligation  on 
the  part  of  a  ship-owner  towards  a  seaman,  who  agrees  to  *  serve 

If  a  man  should  receive  damage  in  any  way  by  his  own  foolhardiness,  even 
where  a  fellow-servant  was  concerned  in  producing  the  result,  he  could  not  re- 
cover of  any  one  upon  the  most  obvious  grounds.  Some  discretion  and  reserve 
are  no  doubt  requisite  in  the  application  of  the  rule  of  the  servant's  right  to 
recover  for  the  default  of  his  fellow-sen-ant,  but  whether  the  difficulty  of  its  ap- 
plication will  fairly  justify  its  abandonment,  would  seem  somewhat  questionable, 
if  the  thing  were  rt»  integra,  which  it  certainly  is  not,  either  in  the  English  or 
American  law. 

In  an  English  case,  in  the  Court  of  Exchequer,  11  Exch.  832 ;  8.  c.  86  Eng. 
L.  &  Eq.  486,  Wiggett  v.  Fox  et  al.,  the  court  adhere  to  the  rule  laid  down  in 
former  English  cases  upon  this  subject,  reiterating  the  same  reasons,  with  the 
qualification,  that  if  there  were  any  reason  for  holding  that  the  persons  whose 
act  caused  the  injury  were  not  persons  of  ordinary  skill  and  care,  the  case  would 
be  different,  there  being  an  implied  obligation  upon  the  master  not  to  employ 
such  persons. 

With  this  qualification  there  seems  to  be  no  serious  objection  to  the  English 
rule  of  law  upon  this  subject.  Bassett  r.  Norwich  &  Nashua  Railw.,  Superior 
Court  of  Conn.  19  Law  Rep.  651. 

In  a  case  in  the  Court  of  Sessions  in  Scotland,  so  late  as  January,  1857,  the 
court  repelled  a  plea,  founded  on  the  claim  that  the  master  is  not  liable  to  a 
servant  for  the  negligence  of  a  fellow-servant.  The  Lord  Justice  Clerk  took 
occasion  to  remark,  that  the  master's  liability  rested  upon  the  broad  prin- 
ciple,^that  an  employer  being  liable  to  third  parties  for  injuries  caused  by  his  ser- 
vants, ^  fortiori  he  is  liable  to  the  servant  for  injury  caused  by  another  servant. 

But  for  injury  to  servants  through  obvious  or  known  defects  of  machinery  in 
the  use  of  the  master,  unknown  to  the  servant,  but  which  the  employer  by  the 
use  of  ordinary  care  could  have  cured,  the  cases  all  agree  that  he  is  liable.  Mc- 
Gatrick  c.Wason,  4  Ohio  N.  S.  566. 

In  the  Exchequer  Chamber,  so  late  as  May,  1857,  in  Roberts  r.  Smith,  29 
Law  Times,  169,  it  was  held,  that  where  the  master  directs  the  conduct  of  the 
servant,  he  is  liable  for  any  injur)*  resulting  therefrom  to  the  other  servants. 
See  also  Weyant  r.  N.  Y.  &  Harlem  R.  3  Duer,  360. 

It  has  been  held  in  some  cases,  Scudder  v.  Woodbridge,  1  Ga.  195,  that  the 
rule  that  the  master  is  not  liable  for  an  injury  to  one  servant  inflicted  by  the 
want  of  care  or  skill  in  a  fellow-servant,  does  not  apply  to  the  case  of  slaves,  on 
account  of  their  want  of  freedom  in  action  and  choice  in  continuing  the  service 
when  it  becomes  perilous.  But  if  an  exception  could  be  founded  upon  any  such 
basis,  it  would  extend  to  all  tlie  subordinate  relations  of  service,  as  has  sometimes 
been  attempted.  But  where  the  injury  resulted  from  the  habitual  negligence  of 
the  engineer  of  a  boat,  whereby  the  slaves  perished,  by  the  bursting  of  a  boiler, 
the  master  of  the  boat  is  liable,  and  the  same  rule  applies  to  the  case  of  freemen. 
Walker  v.  Bollmg,  22  Alab.  294 ;  Cook  p.  Parham,  24  Alab.  21.  The  court  here 
were  equally  divided  upon  the  question,  whether  the  general  rule  upon  this  sub- 
ject applied  to  the  case  of  a  slave  hired  on  a  steamboat. 

But  this  court  subsequently  held,  on  general  principles,  that  where  one  em- 

♦  626,  626 


524     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

on  board,  that  the  ship  is  seaworthy,  and  in  the  absence  of  any  ex- 
press warranty  to  that  effect,  or  of  any  knowledge  of  the  defect,  or 
any  personal  blame  on  the  part  of  the  ship-owner,  the  seaman  can- 
not maintain  an  action,  by  reason  of  the  ship  becoming  leaky,  and 
his  being  obliged  to  undergo  extra  labor. ^^ 

7.  But  a  carpenter  employed  by  a  railway  company  to  build  one 
of  their  bridges,  and  who  took  passage  in  their  cars,  by  their 
directions,  to  go  to  a  certain  point  for  the  purpose  of  loading 
timber  to  be  used  in  building  the  bridge,  and  who  was  injured  *  in 
the  course  of  the  passage  by  the  negligent  conduct  of  the  train, 
is  entitled  to  recover  of  the  company,  the  plaintiff  having  no  par- 
ticular connection  with  the  conduct  of  the  business  in  which  he 
was  injured.^'^ 

8.  The  English  courts  still  maintain  their  former  stand,  that  all 
the  servants  of  the  same  company  engaged  in  carrying  forward  the 
common  enterprise,  although  in  different  departments,  widely  sepa- 
rated, or  strictly  subordinated  to  others,  are  to  be  regarded  as  fel- 
low-servants, bound  by  the  terms  of  their  employment  to  run  the 
hazard  of  any  negligence  or  wrong-doing  which  may  be  committed 
by  any  of  the  number,  so  far  as  it  operates  to  their  detriment. 
This  is  strikingly  illustrated  in  a   recent  case  in   the    Common 

ploys  a  mechanic  to  repair  a  building  which  Is  in  a  ruinous  state,  but  this  is  not 
known  to  the  workmen  and  not  disclosed  to  the  contractor,  the  employer  is  liable 
for  all  injury  sustained  by  the  contractor  or  his  subordinates,  being  slaves  in  this 
case,  by  reason  of  the  peril  to  which  they  are  thus  fraudulently  exposed,  but  that 
he  will  not  be  held  so  liable  if  he  inform  the  contractor  of  the  peril  to  which  he 
is  exposed.     Perry  v.  Marsh,  25  Alab.  659. 

»«  Couch  V.  Steel,  3  El.  &  Bl.  402 ;  s.  c.  24  Eng.  L.  &  Eq.  77.  But  if  the 
master  might  have  known  the  exposure  of  the  servant,  but  for  his  own  want  of 
ordinarj'  care,  as  in  the  use  of  a  defective  locomotive  engine,  which  exploded  and 
injured  the  servant,  through  defective  construction,  the  master  is  liable  for  the 
injurj'.  Noyes  v.  Smith,  28  Vt.  59.  But  where  the  danger  is  known  to  the  ser- 
vant and  not  communicated  to  the  superior,  or  master,  he  cannot  recover  for 
any  injurj-  he  may  sustain  in  consequence.  McI^Iillan  c.  Saratoga  &  Wash.  R. 
20  Barb.  449 ;  Hubgh  c.  N.  O.  &  C.  Railw.,  6  Louis.  An.  495. 

"  Gillenwater  v.  Mad.  &  Ind.  Railw.  5  Ind.  340.  And  where  laborers  upon 
a  railway  were  transported  to  and  from  their  labor  and  meals  upon  the  gravel 
trains  of  the  company,  which  they  were  employed  in  loading  and  unloading,  but 
had  no  agency  in  managing,  and  in  such  transportation,  by  the  gross  negligence 
and  unskllfulness  of  the  engineer  were  injured,  it  was  held  the  company  were 
liable.  Fitzpatrick  r.  New  Albany  and  Salem  Railw,,  7  Porter  (Ind.),  436. 
But  not  where  the  servant  Is  in  fault  in  attempting  to  get  upon  the  train  when  In 
motion.  TImmons  r.  The  Central  Ohio  Railw.,  6  Ohio  N.  S.  105. 
*627 


§  131.  INJURIES  BY   FELLOW-SERVANTS.  525 

Pleas,^^  where  it  was  held  that  one  employed  to  pick  up  stones 
from  oflf  the  defendant's  line,  and  who,  while  returning  in  the  evening 
after  his  work  was  over  in  a  train  driven  by  the  defendant's  ser- 
vants, was  injured  by  a  collision  caused  by  the  negligence  of  those 
who  had  charge  of  the  train,  it  being  one  of  the  terms  of  the  con- 
tract of  hiring  that  he  should  return  in  the  defendant's  train,  could 
not  recover  damages  of  the  company,  as  he  and  the  person  guilty 
of  the  negligence  resulting  in  the  injury  were  fellow-servants,  en- 
gaged in  a  common  employment,  within  the  meaning  of  the  rule  of 
law  applicable  to  the  case. 

9.  This  whole  question  is  very  elaborately  revic^wed  in  a  recent 
case  in  Kentucky ,^^  which  we  shall  here  repeat,  together  with  our 
own  comments  at  the  time  upon  the  several  propositions  embraced 
in  the  opinion,  at  the  risk  of  some  repetition,  perhaps. 

Where  an  employee  upon  a  railway  is  injured  by  the  negligence 
of  the  engineer  of  the  company,  and  is  himself  guilty  only  of  such 
neglect  and  want  of  care  as  would  not  have  exposed  him  *  to  the 
injury  but  for  the  gross  neglect  of  the  engineer,  and  when  the  en- 
gineer might  with  ordinary  care  have  avoided  the  injury,  he  is  not 
precluded  from  maintaining  his  action. 

What  is  gross  neglect  in  the  engineer  may  be  determined  by  the 
court,  as  a  question  of  law,  where  there  is  no  controversy  in  regard 
to  the  facts. 

In  regard  to  those  acts  of  a  corporation  which  require  care,  dili- 
gence and  judgment,  and  which  it  performs  through  the  instru- 
mentality of  general  superintending  agents,  the  corporation  itself  is 
to  be  regarded  as  always  present  supervising  the  action  of  its  agents. 

The  rule  of  law,  that  the  master  is  not  responsible  to  one  of 
his  servants  for  an  injury  inflicted  through  the  neglect  of  a  fel- 
low-servant, is  not  adopted,  to  the  full  extent  of  the  English  de- 
cisions, in  the  state  of  Kentucky.  The  rule  is  there  regarded  as 
anomalous,  inconsistent  with  principle,  analogy,  and  public  policy, 
and  unsupported  by  any  good  or  consistent  reason. 

In  regard  to  all  servants  of  the  company  acting  in  a  subordinate 
sphere,  the  one  class  to  another,  and  receiving  injuries  while  in 
the  performance  of  duties,  under  the  command  of  a  superior,  whose 
authority  they  have  no  right  to  disobey  or  disregard,  it  is  the  same 

'»  Tunney  c.  Midland  Railw.  Co.,  Law  Rep.  1 C.  P.  291 ;  s.c.  12  Jur.  N.  S.  691. 
'»  Louisrille  &  Nashville  Kailw.  r.  Collins,  6  Am.  Law.  Reg.  N.  S.  205 ;  8.  C. 
2  DuvaU,  114. 

*  528 


526     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

precisely  as  if  the  injury  were  inflicted  by  the  act  of  the  company ; 
and  if  there  is  any  want  of  care  and  skill  in  the  superior  such  as  his 
position  and  duty  reasonably  demand,  the  company  are  responsible. 

•In  such  cases  there  is  no  implied  undertaking  on  the  part  of  the 
servant  to  risk  the  consequences  of  the  misconduct  of  the  agent  of 
the  company  under  whose  authority  he  acted,  and  through  whose 
negligence  he  received  the  injury. 

Servants  so  situated,  in  distinct  grades  of  superiority  and  subor- 
dination, are  not  to  be  considered  as  "  fellow-servants,"  or  "  in  the 
same  service ; "  but  rather  in  the  light  of  strangers  to  each  other's 
duties  and  responsibilities ;  and  the  subordinate  may  recover  of 
the  company  for  any  injury  sustained  by  reason  of  the  ordinary 
neglect  of  the  superior. 

But  if  the  subordinate  is  himself  guilty  of  any  want  of  ordinary 
care,  whereby  he  is  more  exposed  to  the  injury,  he  cannot  recover, 
unless  the  superior  was  guilty  of  wilful  misconduct  or  *  gross 
neglect,  but  for  which  he  might  have  avoided  inflicting  the  injury, 
notwithstanding  the  negligence  of  the  other  party. 

Where,  therefore,  an  engineer,  while  upon  his  engine,  ordered  a 
common  laborer  to  do  some  needed  work  under  the  engine,  in  fast- 
ening bolts  or  screws  belonging  to  it ;  and  such  workman,  while 
lying  upon  his  back  in  the  performance  of  the  service,  had  both 
his  legs  cut  off  by  the  movement  of  the  engine  forward  and  back- 
ward, through  the  gross  neglect  or  wilful  misconduct  of  such  en- 
gineer, the  company  are  responsible  for  the  injury,  notwithstanding 
there  might  have  been  some  want  of  ordinary  care  on  the  part  of 
the  subordinate,  contributing  to  some  extent  to  the  injury,  but 
not  necessitating  it,  except  through  the  gross  misconduct  of  the 
superior. 

Per  Robertson^  C.  J.  —  We  do  not  consider  that  the  rule  exempt- 
ing the  company  from  responsibility  for  injuries  inflicted  upon 
their  servants  through  the  want  of  ordinary  care  in  other  servants 
of  the  company,  extends  beyond  those  who  are  strictly  "  fellow- 
servants  "  in  the  same  grade  of  employment,  and  where  one  is  not 
subject  to  the  order  or  control  of  the  others. 

Beyond  this  the  company  is  responsible  for  the  consequences  of 
the  misconduct  of  superiors  towards  inferiors  in  its  service,  the 
same  as  towards  strangers.^ 

*  We  have  presented  a  very  extended  syllabus  of  the  foregoing  case,  em- 
bracing all  the  points  upon  which  the  opinion  of  the  court  is  given,  without 
♦629 


§  131.  INJURIES   BY  FELLOW-SERVANTS.  627 

*  10.  The  question  is  again  reviewed  by  the  same  learned  judge 
who   gave   the  widely-admired  opinion  in  Farwell  v.  Boston  and 

regard  to  their  being  directly  and  necessarily  involved  in  the  decision  of  the 
cause. 

And  notwithstanding  the  avowed  willingness  of  the  learned  judge  to  disregard 
the  general  current  of  authority  upon  the  point,  and  the  apparent  spirit  of  free- 
dom with  which  he  deals  with  the  decisions  in  other  states  and  countries,  —  not- 
withstanding all  this,  and  more  that  might  be  fairly  said  as  to  the  fearlessness 
and  disregard  of  self  with  which  the  opinion  abounds,  which  is  not  altogether 
common  in  dealing  with  the  opinions  of  such  men  as  Lord  Abinger  and  Chief 
Justice  ShavD,  and  a  host  of  others  scarcely  less  eminent  in  their  field  of  service ; 
notwithstanding  all  this,  which  has  rather  surprised  us,  we  must  confess,  at  the 
same  time  that  we  could  not  but  regard  It  as  a  refreshing  exception  to  the  pro- 
verbial subserviency  of  opinion  to  precedent  and  analog}*,  we  have  nevertheless 
felt  compelled  to  the  conclusion  that  the  opinion  is  altogether  and  entirely  sound 
in  its  principles,  and  maintained  with  very  uncommon  ability  in  its  logic  as  well 
as  its  illustrations,  both  of  which  seem  altogether  unexceptionable. 

But  we  must  warn  those  members  of  the  profession  who  are  not  altogether 
aware  of  the  extent  of  the  decisions  in  the  opposite  direction,  that  they  embrace 
a  very  large  number  of  the  best-considered  English  cases,  and  an  equal  number, 
almost,  in  the  American  states,  including  all,  as  far  as  we  know,  with  the  ex- 
ception of  Ohio,  and  Georgia,  and  now  Kentucky.  And  the  decisions  in  these 
latter  states  are  all  attempted  to  be  placed  upon  peculiar  grounds,  thereby 
virtually  confessing  the  soundness  of  the  general  rule,  that  one  cannot  recover 
of  his  employer  for  an  injury  inflicted  through  the  want  of  care  in  a  fellow- 
servant,  employed  in  the  same  department  of  the  master's  business,  and  under 
the  same  general  control.  This  is  declared  by  the  learned  judge  in  the  case 
last  cited. 

The  opinion  in  the  case  would  have  been  far  more  satisfactory  if  the  learned 
judge  could  have  devoted  more  time  and  labor  to  the  matter.  If  a  careful  review 
of  the  preceding  cases,  with  the  reasoning  of  the  judges,  could  have  been  pre- 
sented in  the  very  carefully  prepared  opinion,  it  could  not  have  failed  to  be  more 
valuable.  Discussion  of  a  broad  principle  is  much  less  expensive  to  the  author, 
and  far  less  satisfactory,  as  a  general  thing,  to  the  profession,  than  a  careful 
review  of  the  cases. 

We  should  not  expect  our  readers  would  here  listen  to  such  an  attempt  on  our 
part,  since  it  must  occupy  considerable  space,  and  would  be  merely  professional, 
instead  of  being  clothed  with  the  weight  of  judicial  authority. 

But  we  have  noticed  with  gratification,  more  for  the  justice  of  the  view  than 
because  we  had  before  contended  for  the  same,  that  the  learned  judge  declares 
most  unequivocally,  in  the  principal  case,  that  the  corporation  is  to  be  regarded 
as  constructively  present  in  all  acts  performed  by  its  general  agents  witliin  the 
scope  of  their  authority,  i.  e.  within  the  range  of  their  ordinary  employment. 
The  consequences  of  mistake  or  misapprehension,  upon  this  point,  have  led  many 
courts  into  conclusions  greatly  at  variance  with  the  common  instincts  of  reason 
and  humanity,  and  have  tended  to  interpose  an  unwarrantable  shield  between 
the  conduct  of  railway  employees  and  the  just  responsibility  of  the  company. 

•630 


528     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

*  Maine  Railway,  in  a  later  case,^^  and  the  following  propositions 
maintained.     A  carpenter  employed  by  the  day  by  a  railway  *  cor- 

We  trust  that  the  reasonableness  and  justice  of  this  construction  will  at  no  dis- 
tant day  induce  its  universal  adoption.  See  ante,  §  130,  pi.  6, 7, 8, 9,  and  notes, 
and  cases  cited. 

In  regard  to  the  leading  point  involved  in  the  principal  case,  how  far  a  servant 
is  entitled  to  recover  of  the  master  for  an  injury  inflicted  by  the  negligence  or 
want  of  skill  of  a  feUow-servant,  the  doctrine  of  exemption  was  first  established 
in  the  Court  of  Exchequer,  in  Priestly  v.  Fowler,  3  ^I.  &  W.  1,  which  was 
decided  at  Michaelmas  Term,  1837.  The  same  rule  was  adopted  in  this  country 
by  the  Supreme  Judicial  Court  of  Massachusetts,  in  Farwell  v.  The  Boston  & 
Worcester  Railroad  Corporation,  4  Met.  49,  at  the  March  Term,  1842,  supported 
by  one  of  the  ablest  and  most  unexceptionable  opinions  ever  delivered  from  the 
American  Bench,  —  an  opinion  which  has  commanded  the  admiration  of  the  entire 
profession,  both  Bench  and  Bar,  in  England  as  weU  as  in  America ;  and  which 
has  been  more  extensively  adopted  and  formally  incorporated  into  the  opinions 
of  the  English  courts  than  perhaps  any  other  opinion  of  an  American  judge.  This 
opinion  Was  in  fact  preceded  by  that  of  Murray  v.  The  South  Carolina  Railw. 
Co.,  1  McMullan,  385,  in  the  same  direction;  but  the  former  has  been  regarded 
as  the  leading  American  case. 

These  leading  opinions,  in  the  diflferent  countries,  have  been  followed  by  a 
multitude  of  cases  reaching  do>vn  to  the  present  time,  most  of  them  occupied  in 
the  discussion  of  what  were  claimed  to  be  exceptional  cases.  In  England,  we 
may,  among  a  multitude  of  others,  refer  to  Hutchinson  v.  York,  Newcastle  & 
Berwick  Railw.,  5  Exch.  343 ;  Wigmore  v.  Jay,  id.  354 ;  Skip  v.  Eastern  Coun- 
ties RaUw.,  9  Exch.  223 ;  s.  c.  24  Eng.  L.  &  Eq.  396  ;  Degg  v.  Midland  Railw., 
1  Hurlst.  &  N.  773 ;  Tarrant  v.  Webb,  18  C.  B.  797 ;  s.  c.  37  Eng.  L.  &  Eq. 
281 ;  Mellors  v.  Shaw,  1  B.  &  S.  437  ;  s.  c.  7  Jur.  N.  S.  845 ;  Seymour  v.  Mad- 
dox,  16  Q.  B.  326 ;  Ormond  v.  Holland,  1  El.  Bl.  &  EUis,  102. 

In  the  American  states  the  decisions  are  considerably  numerous  where  the 
general  principle  of  the  foregoing  decisions  has  been  acted  upon,  or  recognized, 
but  we  shall  not  refer  to  more  than  will  be  requisite  to  show  how  far  the  rule 
prevails  in  different  states. 

It  is  adopted  in  Brown  v.  Maxwell,  6  Hill  (N.  Y.),  692;  Coon  v.  Syracuse 
&  Utica  Railw.,  6  Barb.  231;  8.  c.  1  Selden,  492,  and  numerous  other  New 
York  cases  cited,  ante,  §  131.  See  also  Honner  v.  III.  Central  Railw.,  15  HI. 
550;  Ryan  v.  Cumberland  Valley  Railw.,  23  Penn.  St.  384;  Madison  & 
Indianapolis  Railw.  v.  Bacon,  6  Porter  (Ind.),  205;  Hawley  r.  Baltimore  & 
Ohio  Railw.,  6  Am.  Law.  Reg.  352;  Frazier  v.  Pennsylvania  Railw.  Co.,  38 
Penn.  St.  104;  Wright  r.  New  York  Central  Railw.,  28  Barb.  80;  Carle  ». 
B.  &  P.  Canal  &  Railw.  Co.,  43  Maine,  269;  Noyes  v.  Smith,  28  Vt.  59; 
Indianapolis  Railw.  v.  Love,  10  Indiana,  554;  Same  v.  Klein,  11  id.  38.  The 
general  principle  is  adopted  in  all  the  other  states  where  the  question  has  arisen ; 
for  although  in  Ohio,  in  the  cases  of  Little  Miami  Railw.  Co.  r.  Stevens,  20  Ohio, 


"  Seaver  r.  Boston  &  M.  Railw.  Co.,  14  Gray,  466. 
•  631,  632 


§  131.  INJUMES   BY   FELLOW-SERVANTS.  529 

poratioii  to  work  on  the  line  of  their  road,  and  carried  on  the  cars 
to  the  place  of  such  work  without  paying  fare,  cannot  maintain  an 

415,  and  C.  C.  &  C.  Railw.  Co.  e.  Keary,  3  Ohio  N.  S.  201,  the  companies  are 
held  responsible  for  the  injury,  the  decisions  are  placed  upon  the  ground,  that 
the  persons  injured  were  in  subordinate  positions.  And  in  Scudder  v.  Wood- 
bridge,  1  Kelly,  195,  it  was  held  the  rule  did  not  excuse  the  master  for  injury 
thus  caused  to  slaves,  mainly  upon  the  same  ground  of  their  dependent  and  sub- 
ordinate positions.  And  the  principal  case  is  placed  upon  the  same  ground. 
And  in  the  more  recent  case  of  Whaalan  v.  Mad.  R.  &  Lake  Erie  Railw.  Co.,  8 
Ohio,  N.  S.  249,  it  was  held,  that  where  one  of  the  trackmen  was  injured  by 
neglect  of  the  fireman  upon  one  of  the  trains,  there  was  no  such  subordination  of 
position  as  to  take  the  case  out  of  the  general  rule,  and  the  case  was  decided  in 
favor  of  the  company ;  thus  maintaining  the  soundness  of  the  general  rule  in  that 
state  by  its  latest  decision. 

It  is  safe,  therefore,  to  state,  that  all  the  cases,  both  English  and  American, 
maintain  the  general  rule  to  the  extent  of  those  who  are  strictly  "  fellow-ser- 
vants "  in  the  same  department  of  service.  And  where  this  is  not  the  fact,  bat 
the  employees  are  so  far  removed  from  each  other  that  the  one  is  bound  to  obey 
the  directions  of  the  other,  so  that  the  superior  may  be  fairly  regarded  as  rep- 
resenting the  master,  we  think  it  more  consonant  with  reason  and  justice  to 
treat  the  matter  as  not  coming  within  the  principle  of  the  rule.  This  is  so  de- 
clared by  Gardiner,  J.,  in  Coon  v.  Syracuse  &  Utica  Railroad  Co.,  1  Selden, 
492.  But  this  qualification  is  denied  by  Shaw,  C.  J.,  in  Farwell  v.  Boston  & 
Worcester  Railw.,  4  Met.  49,  60,  61,  unless  the  departments  of  service  are  so  far 
independent  as  to  have  no  privity  with  each  other,  not  being  under  the  control 
of  a  common  master.  And  it  was  so  decided  in  Gilshannon  v.  Stony  Brook 
Railw.  Co.,  10  Cush.  228.  And  it  seems  finally  to  be  settled  upon  authority, 
that  it  is  sufficient  to  bring  the  case  within  the  rule,  that  the  servants  are  em- 
ployed in  the  same  common  service,  as  in  running  a  railway,  or  working  a  mine. 
Wright  r.  New  York  Central  Railw.,  25  N.  Y.  562,  564,  by  Allen,  J.  The 
question  is  whether  they  are  under  the  same  general  control.  Abraham  v. 
Reynolds,  5'  U.  &  N.  142;  Hard,  AdmV  v.  Vermont  &  Canada  Railroad,  32 
Vt.  473.  And  there  is  no  question  that  the  master  is  responsible  for  any  want 
of  skill  or  care  in  employing  competent  and  trustworthy  servants,  and  in  suffi- 
cient numbers ;  and  in  furnishing  safe  and  suitable  machinery  for  the  work  in 
hand,  unless  the  servants,  knowing,  or  having  the  means  of  knowing,  of  the 
deficiency  in  furnishing  proper  help  or  machinery,  consent  to  continue  in  the 
employment.  And  the  neglect  or  want  of  skill  of  the  master^s  general  agent 
employed  in  procuring  help  and  machinery,  is  the  act  of  the  master ;  Hard  c.  Ver- 
mont &  Canada  Railw.  Co.,  stipra;  Wiggett  r.  Fox,  36  Eng.  L.  &  Eq.  486 ;  11 
Exch.  832 ;  Noyes  c.  Smith,  28  Vt.  59.  Indeed  this  exception  is  recognized  in 
most  of  the  preceding  cases.  Many  of  the  late  cases  upon  the  question  have 
turned  upon  this  point,  the  general  rule  having  been  regarded  as  settled  beyond 
question  for  many  years.  We  are  not  disposed  to  question  the  extent  of  the  ex- 
ceptions to  the  general  rule ;  and  possibly  any  greater  extension  in  that  direc- 
tion might  essentially  impair  the  general  benefit  to  be  derived  from  it.  But  we 
would  be  content  to  treat  all  the  subordinates  who  were  under  the  control  of  a 

34 


630     LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

action  against  the  corporation  for  injuries  received  while  being  so 
carried,  by  the  negligence  of  the  engineer  employed  by  them  for 
that  service,  or  by  a  hidden  defect  in  the  axle,  the  failure  to  dis- 
cover which,  if  discoverable,  was  occasioned  by  the  negligence  of 
servants  of  the  corporation,  whose  duty  it  was  to  examine  and 
keep  in  repair  the  cars,  engines,  and  axles.  In  such  a  case,  if  the 
company  exercised  reasonable  care  in  providing  and  using  the 
machinery,  in  the  use  of  which  the  plaintiff  was  so  injured,  they 
are  not  responsible  for  the  injury. 

11.  And  in  a  late  case^  before  the  same  court,  where  a  servant 
was  accidentally  hurt  by  an  engine  running  upon  him  from  the 
turn-table,  through  some  defect  in  the  brake,  it  was  held  competent 
for  the  company  to  show  in  defence  that  the  person  having  charge 
of  all  the  engines  upon  the  road  had  given  instructions  to  the  en- 
gineers to  have  the  wheels  of  their  engines  blocked  while  turning 
upon  the  turn-table,  and  that  the  accident  occurred  in  consequence 
of  some  servant  neglecting  such  instructions,  although  the  instruc- 
tions had  not  been  communicated  to  the  plaintiff. 

12.  But  the  servants  of  one  railway  company  are  not  fellow- 
servants  with  the  servants  of  another  company  who  use  the  same 
station  with  the  fii"st  company,  and  while  those  are  subject  to  the 
direction  of  the  station-master  of  that  company,  and  the  second 
company  is  responsible  for  an  injury  to  one  of  the  servants  of  the 
first  company,  by  the  negligence  of  their  engine  driver.^ 

13.  Although  a  railway  company  is  not  responsible  to  one  whom 
they  employ  to  repair  their  cars,  for  any  hurt  he  may  receive  in 
passing  upon  the  company's  cars  to  and  from  his  work,  free  of 
charge,  through  the  misconduct  of  a  switchman,  provided  the  com- 
pany were  not  in  fault  in  his  selection  or  retainer ;  but,  if  he  were 
an  habitual  drunkard  and  that  known  to  the  company,  or  might 
have  been  known  but  for  their  own  neglect  to  make  proper  inspec- 
tion of  their  business,  and  the  injury  resulted  from  this  intoxica- 
tion, the  testimony  is  proper  to  be  submitted  to  the  jury,  as  tending 
to  show  culpable  neglect  on  the  part  of  the  company .^^    And  when 

superior  as  entitled  to  hold  such  superior  as  representing  the  master,  and  the 
master  as  responsible  for  his  incompetency  or  misconduct.  We  should  regard 
this  as  a  more  salutar}'  rule,  upon  the  whole,  than  the  present  one,  but  the  gen- 
eral current  of  authority  seems  greatly  in  the  opposite  direction. 

■*  Durgin  v.  Munson,  9  Allen,  396. 

"  Warburton  r.  Great  Western  Railw.,  L.  R.  2  Exch.  80. 

**  Gilman  r.  Eastern  Railw.,  10  Allen,  233. 


§  131  a. 


INJURIES  BT   FELLOW-SERVANTS. 


531 


this  case  was  before  the  court,  at  another  time,^  it  was  held  that  a 
verdict  for  the  plaintiff  will  not  be  disturbed  in  such  a  case,  be- 
cause it  was,  by  the  order  of  the  company,  the  regular  business  of 
another  servant  of  the  company  to  manage  the  switch,  and  on  this 
occasion  it  was  wrongly  adjusted  by  the  flagman,  who  was  an 
habitual  drunkard,  and  had  usually  been  intrusted  with  the  man- 
agement of  the  switch,  and  that  his  habits  were  known,  or  by  the 
exercise  of  proper  care  would  have  been  known,  to  the  corporation. 
Nor  will  it  excuse  the  company  that  due  care  was  exercised  in  the 
original  selection  of  such  flagman,  and  that  a  proper  local  agent 
had  been  employed  by  the  company  with  authority  to  hire  and  su- 
perintend such  servants  of  the  company  as  may  be  necessary.  It 
was  also  held  here  that  evidence  that  the  flagman  was  commonly 
reputed  to  be  an  habitual  drunkard,  in  the  place  where  he  lived, 
was  competent  evidence  for  the  jury  as  tending  to  show  that  his 
intemperate  habits  should  have  been  known  to  the  officers  of  the 
company. 

*§  131  a.  The  following  points,  decided  by  a  court  of  ability, 
and  the  opinion  in  which  the  several  propositions  were  very  care- 
fully illustrated,  with  our  own  comments  upon  them,  as  pub- 
lished in  the  American  Law  Register,^  appear  to  us  proper  to  be 
repeated  here,  as  the  clearest  exposition  of  our  own  views  upon 
the  questions  involved  which  we  could  give. 


Where  a  passenger  is  injured  on  a  rail- 
uxitf  the  priin&  fecie  presumption  is,  that 
it  resulted  from  the  want  of  due  cart  on 
the  part  of  the  company. 

But,  nevertheless,  it  is  competent  to  prove 
the  damage  occurred  without  their  fault. 


One  who  rides  upon  a  free  pass,  or  in  the 
baggage-car,  is  not  thereby  deprived  of 
his  remedy  against  the  comjxiny  for  in- 
juries received  through  their  uxtnt  of  due 
care,  provided  he  was  at  the  time  a  pas- 
senger and  without  fault  on  his  own  part. 


The  following  propositions  were  declared  by  the  Supreme  Court 
of  Missouri,  in  the  case  of  Hannibal  and  St.  Joseph  Railroad 
Company  v.  Hattie  Higgins,  by  Eliza  Higgins,  her  guardian:^  — 

1.  The  statute  of  Missouri  giving  a  remedy  to  the  representa- 
tives of  a  passenger  killed  upon  a  railway  train,  goes  upon  the 
same  principle  which  before  obtained  in  regard  to  injuries  to 
passengers,  that  such  injury  or  death  prima  facie  results  from 
want  of  due  care  in  the  company. 

2.  The  presumption  is  not  conclusive  under  the  statute,  but 

»  13  Allen.  433. 

>  6  Am.  Law  Reg.  N.  S.,  715-721 ;  8.  c.  86  Mo.  418. 

•633 


632    UABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

may  be  rebutted  by  evidence  of  the  cause  of  the  injury.  One 
who  had  been  in  the  employment  of  the  company  as  an  engineer 
and  brakcman,  until  his  train  was  discontinued  a  few  days  pre- 
vious, and  who  had  not  been  settled  with  or  discharged,  although 
not  actually  under  pay  at  the  time,  and  who  signalled  the  train 
to  take  him  up,  and  who  took  his  seat  in  the  baggage-car  with 
the  other  employees  of  the  company,  and  paid  no  fare  and  was 
not  expected  to,  although  at  the  time  in  pursuit  of  other  employ- 
ment, cannot  be  considered  a  passenger.  If  he  would  secure 
the  immunities  and  rights  of  a  passenger,  he  should  have  paid 
his  fare  and  taken  a  seat  in  the  passenger-car. 

3.  It  will  not  deprive  of  his  remedy  a  passenger  who  comes 
upon  the  train  in  that  character,  and  is  so  received,  that  he  is 
allowed  as  matter  of  courtesy  to  pass  free,  or  to  ride  with  the 
employees  of  the  road  in  the  baggage-car.  But  a  passenger  who 
•leaves  the  passenger  carriages  to  go  upon  the  platforms  or  into 
the  baggage-car,  unless  compelled  to  do  so  for  want  of  proper 
accommodations  in  the  passenger  carriages,  or  else  by  permission 
of  the  conductor  of  the  train,  must  be  regarded  as  depriving 
himself  of  the  ordinary  remedies  against  the  company  for  injuries 
received,  unless  upon  proof  that  his  change  of  position  did  not 
conduce  to  the  injury.^ 

*  Holmes,  J.  —  "  The  plaintiff  below,  an  infant  and  only  child  of  Thomas  G. 
Higgins,  who  was  killed  while  riding  in  a  baggage-car  on  the  Hannibal  and  St. 
Joseph  Railroad,  on  the  16th  day  of  September,  1861,  brings  this  suit ;  the  widow 
having  failed  to  sue  within  six  months  to  recover  the  $5,000,  which  are  given  by 
the  second  section  of  the  act  concerning  damages  (Rev.  Stat.  1855,  p.  647), 
where  any  passenger  shall  die  from  an  injury  resulting  from  or  occasioned  by 
any  defect  or  insufficiency  in  any  railroad. 

"The  petition  is  evidently  framed  upon  that  act,  though  the  statute  is  not 
named  or  referred  to  by  any  express  words.  It  contained  two  counts ;  one 
founded  upon  the  second  section,  and  the  other  upon  the  third  section  of  the 
act. 

"  The  verdict  was  for  the  plaintiff  upon  the  first  count,  and  for  the  defendant 
upon  the  second  count ;  and  the  damages  were  assessed  at  $5,000.  The  de- 
fendant's motion  for  a  new  trial  was  overruled.  The  case  came  up  by  appeal, 
and  stands  here  upon  the  first  count  only. 

"  The  clause  of  the  act  on  which  this  first  count  is  founded  relates  exclusively 
to  passengers,  and  to  the  cases  of  injury  and  death  occasioned  by  some  defect  or 
insufficiency  in  the  railroad.  This  statute  makes  the  mere  fact  of  an  injur)'  and 
death  resulting  from  a  cause  of  this  nature,  a  prima  facie  case  of  negligence 
and  liability  on  the  part  of  the  defendant,  as  a  presumption  of  law.  It  is  not  a 
conclusive  presumption,  but  disputable  by  proof  that  such  defect  or  insufficiency 
•634 


§  132.     DEFECTS  IN  fflGHWAYS  CAUSED   BY  COMPANY'S  WORKS.      533 


•SECTION    IV. 


Injuries  by  defects  in  Highways  caused  by  Company^s  Works. 


Liable  for  injuries  caused  bjf  leaving  streets 
in  insecure  condition. 

Municipalities  liable  primarUy  to  travdlers 
suffering  injury. 

They  may  recover  indemnity  of  the  company. 

Towns  liable  to  indictment.  Company  lia- 
ble to  mandamus  or  action. 

Construction  of  a  grant  to  use  streets  of  a 
city. 

Such  grant  does  not  give  the  public  any 
right  to  use  the  tracks. 


7.  Bound  to  keep  highways  in  repair. 

8.  Municipalities  not  responsible  for  injuries 

by  such  grant, 

9.  Canal  company  not  excused  from  nuuH- 

taining  fann  accommodations  by  rail- 
way interference. 

10.  Railway  track  crossing  private  way. 

11.  One  being  wrong-doer  in  opening  compa- 

ny's  gates  cannot  recover. 


§  132.  1.  Where  a  public  company  has  the  right,  by  law,  of 
taking  up  the  pavement  of  the  street,  the  workmen  they  employ 

wa«  not  the  result  of  negligence,  nor  does  it  preclude  any  other  defence  of  a 
different  nature.  The  act  ia  to  be  interpreted  and  construed  with  reference  to 
the  state  of  the  law  as  it  stood  before  its  passage.  By  the  general  principles  of 
law,  which  were  applicable  to  common  carriers  of  passengers  and  to  persons 
standing  in  that  relation,  the  fact  of  an  injury  to  a  passenger,  occasioned  by  a 
defective  railroad  car  or  coach,  or  by  a  defect  in  any  part  of  the  machinery, 
makes  a.  prima  facie  case  of  negligence  against  the  defendant  sufficient  to  shifl 
the  burden  of  proof:  and  by  that  law  carriers  of  passengers  were  held  respon- 
sible for  the  utmost  degree  of  care  and  diligence,  and  were  liable  for  the  slight- 
est neglect.  This  act  is  evidently  based  upon  the  same  principles :  it  is  confined 
by  its  terms  strictly  to  passengers  and  to  injuries  arising  from  cases  of  that  pe- 
culiar nature  only ;  and  it  must  receive  a  construction  in  accordance  with  these 
principles.  Viewed  in  this  light,  it  is  clear  that  the  intent  of  this  clause  of  the 
act  was  to  provide  greater  security  for  the  lives  and  safety  of  the  passengers  as 
such,  and  to  enable  the  representatives  of  a  deceased  passenger  to  pursue  the 
*  remedy  given  by  the  act ;  and  no  other  class  of  persons  is  intended  within  its 
purview. 

"  The  first  question  here  presented  is,  whether  the  deceased  person  was  a  pas- 
senger within  the  meaning  of  the  act.  The  evidence  shows  he  had  been  in  the 
employ  of  the  company  as  an  engineer  and  brakeman  for  several  years,  with 
some  intermission :  that  for  several  months  previous  to  the  accident,  and  down 
to  the  4th  day  of  September,  1861,  when  his  train  was  stopped  by  guerillas,  he 
had  been  continually  on  duty  as  a  brakeman  ;  and  that,  about  that  time,  the  in- 
terruptions occasioned  by  actual  hostilities  in  that  neighborhood  had  caused  the 
train  on  which  he  was  employed  to  cease  running  for  a  time ;  and  that  for  sev- 
eral days  before  the  day  of  his  death  he  had  not  been  in  actual  service  upon 
any  train,  but  his  name  still  remained  on  the  roll  of  the  company's  employees 
as  before.  He  had  never  been  paid  ofi*  and  discharged  ;  bis  account  was  unset- 
tled ;  there  were  arrears  still  due  him  at  the  time  of  his  decease.     It  appeara 

•636,638 


534    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

are  bound  to  use  such  care  and  caution  in  doing  the  work  as  will 
protect  the   king's   subjects,   themselves   using   reasonable   care, 

brakemen  were  paid  monthly,  but  at  the  rate  of  so  much  per  day  for  as  many 
days  as  they  actually  worked  during  the  month. 

"These  facts  would  all  go  to  show  that  his  emplojTnent  still  continued,  and 
that  his  relations  to  the  company  was  still  that  of  an  employee.  On  the  morn- 
ing of  the  accident  he  signalled  the  train  to  stop,  and  take  him  up  where  he 
was  ;  he  took  his  place  on  the  baggage-car  among  other  employees ;  he  appears 
to  have  treated  himself  as  an  employee,  and  was  treated  by  the  conductor  as  an 
employee  who  was  passing  from  one  point  to  another  on  the  road  in  the  usual 
manner.  He  engaged  no  passage,  took  no  seat  in  any  passenger-car,  paid  no 
fare,  and  evidently  did  not  expect  to  pay  any ;  and  none  was  exacted  from  him. 
He  did  not  claim  to  be  a  passenger,  nor  was  he  treated  otherwise  than  as  an 
employee  by  the  conductor.  Upon  a  careful  examination  of  the  evidence  on  this 
point,  we  think  it  tended  to  prove  that  he  was  an  employee,  and  not  a  passen- 
ger within  the  purview  of  this  act,  and  that  under  all  the  circumstances  the  con- 
ductor had  a  right  to  presume  he  was  travelling  as  an  employee  of  the  company 
merely. 

"  Such  being  the  relation  of  the  parties,  the  mere  circumstances  that  he  had 
been  off  duty  as  a  brakeman  for  some  days,  or  that  he  was  then  passing  on  his 
own  private  errand,  and  not  immediately  engaged  on  the  business  of  the  com- 
pany or  in  running  that  verj'  train,  cannot  be  allowed  to  make  any  diiference : 
Gilshannon  v.  Stony  Brook  Railw.  Co.,  10  Cush.  228.  The  conductor,  knowing 
him  only  as  an  employee,  was  not  bound  to  inquire  into  his  particular  errand ; 
and  though  informed,  by  a  casual  conversation  with  him  in  the  baggage-car,  that 
he  was  looking  for  some  temporary  employment  so  as  not  to  lose  time,  he  still 
might  be  justified  as  treating  him  as  an  employee  who  had  the  privilege  of  free 
passage  on  the  train  as  such.  Under  such  circumstances  it  was  his  business,  if 
he  claimed  to  be  a  passenger,  to  engage  or  take  a  seat  in  the  passenger-coach, 
or  at  least  in  some  way  to  make  it  known  to  the  conductor  that  he  claimed  to  be 
travelling  in  the  character  of  a  passenger. 

'  *  Where  a  director  was  invited  by  the  president  to  pass  over  the  road  as  a  pas- 
senger, without  paying  fare  ;  Philadelphia  and  Reading  Railroad  Co.  ».  Derby, 
14  How.  (U.  S.)  468 ;  where  a  man  was  taken  up  by  the  engineer  of  a  gravel- 
*  train,  to  be  carried  as  a  passenger,  paying  fare  as  the  practice  had  been,  and 
was  allowed  to  go  from  the  tender  to  the  gravel-car :  Lawrenceburg  &  Upper 
Mississippi  Railroad  Co.  v.  Montgomery,  7  Ind.  474 ;  and  where  a  man  who  had 
been  a  work -hand  on  the  road,  but  had  left  the  service  of  the  company  two 
weeks  before  the  accident,  because  they  did  not  pay  him,  got  upon  the  train  to 
be  carried  as  a  passenger :  Ohio  and  Mississippi  Railroad  Co.  v.  Muhlins,  30  111. 
9 ;  and  where  a  house-carpenter  was  employed  to  build  a  bridge,  and  was  sent 
by  the  company  on  their  cars  to  another  place  to  assist  in  loading  timber  for  the 
bridge:  Gillenwater  v.  Madison  and  Indiana  Railroad  Co.,  5  Ind.  340;  the  in- 
jured person  was  held  to  be  clothed  with  all  the  right  and  character  of  a  passen- 
ger and  a  stranger ;  and  that  he  was  not  to  be  considered  as  standing  on  the  same 
footing  as  ordinary  employees  and  fellow-servants  of  the  company. 

"  If  this  party  had  been  invited  to  go  in  the  train  as  passenger,  or  had  taken  a 
*636 


§  132.     DEFECTS   IN   HIGHWAYS  CAUSED   BY  COMPANY'S  WORKS.      535 

from  injury.  And  if  they  so  lay  the  stones  as  to  give  such  an 
appearance  of  security  as  would  induce  a  careful  person,  using 

seat  in  the  passenger-car,  or  had  been  taken  on  board  the  train  in  the  character 
of  a  passenger,  and  the  conductor  had  merely  waived  his  right  to  demand  fare 
as  an  act  of  liberality  or  courtesy,  and  had  then  allowed  him  to  pass  into  the 
baggageM;ar  to  ride  there,  the  case  would  have  been  quite  different,  and  might 
have  fallen  within  the  reasoning  and  the  principles  of  these  adjudicated  cases. 
The  benefit  of  this  act  was  plainly  intended  for  those  only  who  stand,  strictly 
speaking,  in  the  relation  of  passengers,  and  between  whom  and  the  carrier  there 
exists  the  privity  of  contract,  with  or  without  fare  actually  paid,  and  the  peculiar 
responsibilities  which  are  implied  in  that  relation  and  depend  wholly  upon  it. 
Where  the  relation  is  properly  that  of  master  and  servant  only,  this  particular 
clause  of  the  act  has  no  application.  We  think  this  matter  was  not  fairly  nor  cor- 
rectly laid  before  the  jury  by  the  instructions  of  the  court  below. 

"Again,  even  if  the  deceased  party  would  be  considered  as  having  been  in  any 
proper  sense  a  passenger,  there  would  not  be  the  least  doubt  that  he  himself 
neglected  all  precautions  and  voluntarily  placed  himself  in  a  position  which  be 
knew  to  be  the  most  dangerous  on  the  train  for  passengers.  A  baggage-car  is 
certainly  no  place  for  a  passenger,  and  as  such  the  proof  shows  he  had  no  busi- 
ness to  be  there  at  all.  We  are  aware  that  it  had  been  held  in  some  cases,  that 
if  a  passenger,  who  is  travelling  as  such,  is  allowed  to  go  into  the  baggage-car 
or  into  a  part  of  the  baggage-car  which  is  used  as  a  post-office,  where  passengers 
are  sometimes  permitted  to  be,  as  in  Carrol  v.  New  York  and  New  Haven  Rail- 
road Co.,  1  Duer,  571,  and  while  there  an  accident  and  injury  occur,  by  reason 
of  negligence  on  the  part  of  the  company,  and  under  such  circumstances  that  his 
being  in  that  place  cannot  be  said  to  have  materially  contributed  to  produce  the 
accident  or  injury,  the  defendant  would  still  be  held  liable.  In  many  cases  of 
this  kind,  it  might  be  difficult  to  determine  whose  negligence  had  been  the  real 
cause  of  the  injury. 

"  But  any  question  of  this  nature  is  removed  from  our  consideration  in  this  case 
by  force  of  another  statute  which  finds  an  apt  and  just  application  here. 

••  By  the  64th  section  of  the  Act  concerning  Railroad  Associations,  Rev.  Stat. 
1855,  p.  430,  approved  one  day  only  after  the  act  in  question,  it  is  expressly 
provided  as  follows :  — 

"  •  In  case  any  passenger  on  any  railroad  shall  be  injured  while  on  the  platform 
•  of  a  car,  or  in  any  baggage,  wood,  or  freight-car,  in  violation  of  the  printed  reg- 
ulations of  the  company,  posted  up  at  the  time  in  a  conspicuous  place  inside  of 
its  passenger-cars,  then  in  the  train,  such  company  shall  not  be  liable  for  the  in- 
jury. Provided,  said  company  at  the  time  furnish  room  inside  its  passenger- 
cars  sufficient  for  the  proper  accommodation  of  its  passengers.^ 

"  This  provision  is  by  the  57th  section  of  the  same  act  made  applicable  to  all 
existing  railroads  in  this  State  :  Ibid.,  p.  438.  Under  this  section  the  exemp- 
tion of  the  company  is  made  to  depend  upon  a  violation  by  the  passenger  of  the 
printed  regulation  hung  up  in  the  passenger-cars  only.  They  are  not  required 
to  be  posted  up  in  a  baggage-car :  it  is  presumed  that  no  passenger  will  ever  be 
found  there.     There  was  evidence  in  the  case  tending  to  prove  that  the  pro- 

•637 


536    LIABILITY  FOR  CONTRACTORS,  AGENT8,  AND  SUB-AGENTS.    CH.  XX. 

reasonable  caution,  to  tread  upon  them,  as  safe,  when  in  fact 
they  are  not  so,  the  company  will  be  answerable  in  damages  for 
any  injury  such  person  may  sustain  in  consequence.^ 

▼inon  of  the  statute  had  been  complied  with  on  the  part  of  the  defendant ;  but 
the  printed  forms  used  had  been  changed  since  that  time,  and  no  copy  of  the 
former  cards  had  been  found,  and  on  proof  made  of  the  loss  of  them  secondary- 
evidence  was  offered  to  prove  their  contents.  This  evidence  was  excluded  as 
irrelevant,  and  having  no  bearing  upon  the  case.  In  the  view  we  have  taken  of 
this  statute  the  evidence  was  certainly  verj'  material  and  should  have  been  admit- 
ted. It  is  true  such  notice  would  have  given  this  party  no  information,  for  the 
reason  he  did  not  go  in  the  passenger-car ;  the  evidence  tended  to  show  that 
he  was  in  fact  well  acquainted  with  these  regulations ;  and  this  consideration, 
80  far  from  weighing  any  thing  in  his  favor,  would  rather  tend  to  strengthen  the 
inference  that  he  was  not  a  passenger  at  all.  This  statute  proceeds  again  upon 
the  general  principles  of  law  in  relation  to  contributory  negligence,  and  it  sup- 
poses that  a  passenger  who  has  had  the  warning  of  this  notice,  and  yet  has 
placed  himself  in  a  situation  so  dangerous  as  a  baggage-car,  is  to  be  considered 
as  contributing  by  his  own  negligence  to  produce  the  injury,  and  therefore  that 
the  company  is  not  to  be  held  liable  in  such  cases. 

"  We  think  that  the  first  and  second  instructions  asked  for  by  defendant  should 
have  been  given,  and  that  the  fifth,  sixth,  and  seventh  instructions  asked  for  by 
plaintiff  should  have  been  refused.  It  is  not  deemed  necessary  more  particu- 
larly to  notice  the  other  instructions." 

The  foregoing  opinion  seems  to  us  to  present  several  interesting  practical 
points,  in  a  very  judicious  and  sensible  light.  It  is  sometimes  difficult  to  deter- 
mine, with  exact  precision,  when  a  person  ceases  to  be  an  employee  of  the  road 
and  becomes  a  passenger.  There  is  perhaps  no  fairer  test  than  the  one  pre- 
sented in  this  case,  to  allow  his  own  claim  and  conduct  at  the  time,  and  the 
acquiescence  of  the  company,  to  determine  that  question.  At  the  time,  one 
who  has  recently  been  in  the  employment  of  the  company  has  a  motive  to  claim 
the  privileges  of  the  employment,  by  passing  without  the  payment  of  fare.  And 
if  he  claims  the  privilege,  and  it  is  acceded  to  by  the  officers  of  the  company, 
there  is  great  injustice  in  allowing  the  person  at  the  same  time  to  hold  the  com- 
pany to  the  higher  responsibility  which  it  owes  to  passengers,  from  whom  it 
derives  revenue.  It  should  therefore  be  made  to  appear,  that  one  who  passes 
in  the  character  of  an  employee  of  the  road  was  really  a  passenger,  before  he 
can  fairly  be  allowed  to  demand  the  indemnity  which  passengers  may  by  law  re- 
quire. If  the  person  assumes  one  character  for  his  advantage,  and  the  company 
accede  to  the  claim,  he  ought  not  to  be  allowed  the  benefits  of  any  other  charac- 
ter, unless  it  is  very  clear  such  was  his  real  position,  and  that  this  was  under- 
stood by  the  company. 

The  effect  of  free  passes,  and  of  the  passenger  being  out  of  his  place  in  the 
carriages,  is  very  fairly  presented,  as  it  seems  to  us,  in  the  foregoing  opinion, 
and  the  principal  cases  are  referred  to  upon  all  the  points. 

'  Drew  V.  The  New  River  Co.,  6  Carr.  &  P.  764. 


§  132.    DEFECTS   IN  HIGHWAYS   CAUSED   BY  COMPANY'S   WORKS.      537 

And  in  a  more  recent  case,^  a  canal  and  railway  company,  as 
early  as  the  28  Geo.  2,  had  acquired  the  right,  by  act  of  parlia- 
ment, to  construct  a  canal  and  take  tolls  thereon,  and  had  built 
the  same  across  an  ancient  highway  near  St.  Helens,  a  small 
village,  and  had  made  a  swivel  bridge  across  the  canal  for  the 
passage  of  the  highway;  and  by  subsequent  acts,  reciting  the 
•existence  of  such  works,  all  persons  were  to  have  free  liberty 
with  boats  to  navigate  the  canal  for  the  transportation  of  goods, 
and  penalties  were  imposed  upon  such  persons  as  should  leave  open 
the  drawbridges.  The  company  maintained  the  works  and  re- 
ceived a  toll  from  all  others  using  them.  A  boatman  having 
opened  the  swivel  bridge,  to  allow  his  boat  to  pass  through,  in 
the  night-time,  a  person  walking  along  the  road  fell  into  the 
canal  and  was  drowned,  just  as  the  boat  was  coming  up.  When 
the  bridge  was  open  the  highway  was  wholly  unfenced.  Two 
lamps  had  formerly  been  kept  burning,  of  which  one  had  been 
removed  and  the  other  was  out  of  repair  at  the  time.  The  jury 
found  that  the  deceased  was  drowned  by  reason  of  the  neglect  of 
reasonable  precautions  on  the  part  of  the  canal  company,  without 
any  fault  on  his  own  part. 

Held  that  the  defendants,  having  a  beneficial  interest  in  the 
tolls,  were  liable  to  an  action,  the  same  as  any  owner  of  private 
property  would  be  for  a  nuisance  arising  therefrom.  That  the 
bridge  being  in  the  possession  of  defendants,  the  action  was  prop- 
erly brought  against  them  and  not  against  the  boatman.  That 
the  passing  the  subsequent  acts,  recognizing  the  existence  of  the 
bridge,  was  not  a  legislative  declaration  of  its  sufficiency. 

It  was  further  held,  that  even  if  the  bridge  had  been  sufficient 
at  the  time  of  its  erection,  it  was  the  duty  of  the  company  so  to 
alter  and  improve  its  structure,  from  time  to  time,  as  at  all  times 
to  maintain  a  bridge  sufficient,  with  reference  to  the  existing 
state  of  circumstances,  and  that  the  jury  were  warranted  in  con- 
sidering the  bridge,  in  the  state  in  which  it  was,  insufficient. 

2.  But  it  has  been  held,  that  where  such  companies,  having 
the  power,  by  law,  to  cut  through  and  alter  highways,  either 
temporarily  or  permanently,  do  it  in  such  a  manner  as  to  leave 
them  unsafe  for  travellers,  who  in  consequence  sustain  injury 
without  fault  on  their  part,  that  the  towns  or  cities  in  which 

*  Manley  r.  The  St.  Helens  Canal  &  Railw.  Co.,  2  H.  &  N.  840. 

•M9 


538    LIABILITY  FOR  COKTRACTOBS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

such  highways  or  public  streets  are  situated  are  primarily  lia- 
ble ^  for  all  such  injuries. 

*  3.  And  it  is  also  true  that  such  towns  or  cities  may  claim  an 
indemnity  against  the  railway  companies  who  are  first  in  fault, 
and  in  such  action  recover  not  only  the  damages  but  the  costs 
paid  by  them,  and  which  were  incurred  in  the  reasonable  and 
necessary  defence  of  actions  brought  against  them  on  account  of 
the  defects  in  such  company's  works.* 

'  Willard  v.  Newbury,  22  Vt.  458 ;  Batty  v.  Duxbury,  24  Vt.  155 ;  Currier 
V.  Lowell,  16  Pick,  170;  Buffalo  ».  Holloway,  14  Barb.  101.  In  this  last  case 
an  opinion  is  intimated,  that  a  contractor  for  such  works  is  not  liable  to  make 
such  precautionary  erections  as  may  be  requisite  to  guard  the  public  against 
injury,  no  such  provision  being  found  in  his  contract.  But  is  not  that  a  duty 
which  every  one  owes  the  public  in  all  works  which  he  undertakes  ?  In  Barber 
r.  Essex,  27  Vt.  62,  the  following  points  are  decided :  An  old  highway,  which  a 
railway  proposes  to  use  for  its  track,  is  not  considered  as  discontinued  till  the 
company  have  provided  a  substitute,  or  unless  effected  by  some  other  definite 
legal  act,  or  by  an  abandonment  by  legal  authority,  or  nonuser.  Towns  are 
responsible  to  the  public  for  the  safe  condition  of  their  highways,  and  cannot 
excuse  themselves  from  the  performance  of  the  duty  by  showing  that  a  railway 
company,  proceeding  under  their  charter,  had  caused  the  defects  complained  of. 
The  towns  are  bound  to  watchfulness  upon  this  subject,  and  theirs  being  a 
primary  responsibility,  they  cannot  shift  it  upon  the  railway,  whose  responsibility 
is  secondary  in  regard  to  travellers  and  the  public  generally.  The  towns  have 
their  remedy  over  against  the  company.  See,  also,  to  same  effect,  Phillips  v. 
Veazie,  40  Maine,  96.  The  obligation  upon  the  towns  to  make  highways  safe 
and  convenient  for  travellers  continues  when  they  are  crossed  by  railways  at 
grade,  except  so  far  as  the  necessary  use  of  the  crossing  by  the  railway  may 
prevent  it,  and  subject  to  such  specific  directions  as  may  be  given  by  the  county 
commissioners.  Davis  v.  Leominster,  1  Allen,  182.  But  towns  are  not  liable 
for  obstructions  caused  by  telegraph  poles  which  they  have  no  right  to  remove. 
Young  V.  Yarmouth,  9  Gray,  386.  The  railway  is  also  responsible  for  all  un- 
lawful obstructions  of  the  highway.  Parker  v.  Boston  &  Maine  Railw.  Co., 
8  Cush.  107.  But  where  the  duty  of  maintaining  a  bridge  is  imposed  exclu- 
sively upon  the  railway,  the  town  is  not  responsible  for  any  defects  in  the  same. 
Sawyer  v.  Northfield,  7  Cush.  490.  See,  also,  Jones  c.  Waltham,  4  Cush.  299 ; 
Vinal  V.  Dorchester,  7  Gray,  421. 

*  Lowell  V.  Boston  &  Lowell  Railw.,  23  Pick.  24;  Newbury  r.  Conn.  &  Pas. 
Rivers  Railw.,  25  Vt.  377.  The  recovery  in  these  cases  is  allowed  upon  the 
ground,  that  the  wrong  is  altogether  upon  the  part  of  the  company,  and  the  town, 
standing  primarily  liable  to  the  public  for  the  sufficiency  of  the  highways,  and 
being  virtual  guarantors  against  the  negligence  of  the  railway  company,  may 
therefore  rei-over  of  them  an  indemnity,  not  only  for  the  damages  they  are  com- 
pelled to  pay,  but  also  the  costs  and  expenses  incurred  by  them  in  defending 
bona  Jide  against  suits  brought  against  them  for  the  default  of  the  company. 

•540 


§  132.    DEFECTS  IN  HIGHWAYS  CAUSED   BY  COMPANY'S  WORKS.      539 

And  where  the  injury  did  not  accrue  for  more  than  six  years, 
it  was  held  that  tlie  railway  was  still  liable  to  indemnify  the 
town,  notwithstanding  the  bar  of  the  statute  of  limitations,  *  reck- 
oning the  cause  of  action  as  accruing  at  the  date  of  the  neglect ; 
and  that  it  did  not  exonerate  the  company  guilty  of  the  neglect, 
that  they  had  leased  tlieir  road  to  another  company  who  were 
operating  it  at  the  time  the  injury  occurred.^ 

4.  And  where  the  statute  provides  that  railways  "  shall  main- 
tain and  keep  in  repair  all  bridges,  with  their  abutments,  which 
they  shall  construct  for  the  purpose  of  enabling  their  road  to 
pass  over  or  under  any  road,  canal,  highway,  or  other  way," 
and  the  company  omitted  to  perform  the  duty  in  the  manner  re- 
quired for  the  public  safety,  it  was  held  that  the  town,  within 
which  the  road  lay,  were  liable  to  indictment  for  not  keeping  it 
in  safe  repair,  and  that  they  may  compel  the  railway  company 
to  make  all  such  repairs  as  may  be  necessary,  by  writ  of  man- 
damus ;  or  if  they  have  been  obliged  to  make  expenditures  there- 
in, may  reimburse  themselves  by  an  action  on  the  case  against 
the  company.^ 

5.  And  where  a  railway  company  were  authorized  by  the  leg- 
islature to  construct  and  operate  their  road  through  the  streets 
of  a  city,  and  the  city  government  have  assented  to  the  location 
and  construction  upon  a  designated  route,  on  certain  conditions, 
it  was  held  that  the  municipal  authority  had  no  power  by  reso- 
lution to  annul  or  impair  the  grant  to  the  company  on  account  of 
its  failure  to  complete  the  road  within  the  time  limited  in  the  con- 
ditions annexed  to  their  assentJ  And  that  such  condition  was 
not  to  be  regarded  as  precedent  to  the  vesting  of  the  estate  or 
franchise,  but  only  a  condition  subsequent  upon  the  non-perform- 
ance of  which  the  grantor  might  elect  to  defeat  it,  but  that  noth- 
ing short  of  a  judicial  determination  would  operate  to  divest  the 
interest  of  the  company .^ 

Duxbury  c.  Vt.  C.  Railw.,  26  Vt.  761,  762,  768;  Hayden  v.  Cabot,  17  Mass. 
168;  Hamden  r.  New  Hav.  &  Northamp.  Co.,  27  Conn.  168. 

•  Hamden  ».  New  H.  &  North.  Co.  &  N.  Y.  &  N.  H.  Railw.,  27  Conn.  158. 
But  wht-re  the  company  have  the  right  to  lay  their  rails  in  the  street,  they  are 
not  responsible  for  any  injury  resulting  therefrom  to  others,  unless  they  have 
been  in  fault  either  in  laying  them  down  or  in  keeping  them  safe.  Mazctti  v. 
New  York  &  Harlem  Railw.,  3  E.  D.  Smith,  98;  post,  §  225,  pi.  7. 

'  State  r.  Gorham,  37  Maine,  451. 

'  Brooklyn  Central  Railw.  v.  Brooklyn  City  Railw.,  82  Barb.  868. 

•541 


540     LIABILITY  FOR  CONTRACTORS," AGENTS,  AND  SUB-AGENTS.     CH.  XX. 

6.  Where  a  railway  has  been  laid  upon  a  public  street,  it  does 
not  thereby  become  public  property,  in  such  a  sense  as  to  entitle 
the  public  at  large  or  other  railway  companies  to  use  the  *  track 
for  the  passage  of  carriages  constructed  for  such  use."  Nor  will 
the  permission  of  the  municipal  authorities  for  that  purpose  give 

.  any  such  right." 

7.  Where  a  railway  company  is  required  to  construct  its  road 
so  as  not  to  obstruct  the  safe  and  convenient  use  of  the  highway, 
this  is  a  continuing  obligation  requiring  the  company  to  so  main- 
tain their  road  as  to  leave  the  highway  safe  and  convenient  for 
public  use ;  but  this  will  not  exonerate  the  towns  from  their 
primary  responsibility.^ 

8.  Cities  or  towns  are  not  liable  for  damages  resulting  from 
the  proper  exercise  of  authority  in  permitting  railway  tracks  to 
be  laid  in  the  streets,  or  in  raising  the  grade  of  streets,  unless 
they  exceed  their  lawful  authority  in  this  respect.^  And  it  is 
here  said  to  be  a  legitimate  use  of  a  street  to  allow  a  railway 
track  to  be  laid  in  it. 

9.  Where  a  canal  company  had  constructed  a  bridge  as  part  of 
the  farm  accommodations  of  an  adjoining  land-owner  which  the 
company  were  bound  to  maintain,  and  a  railway  company  by  sub- 
sequent legislative  grant  had  laid  its  track  along  the  line  of  the 
canal,  and  in  consequence  had  been  compelled  to  alter  the  con- 
struction of  the  bridge  so  as  to  render  it  more  expensive  to  main- 
tain the  same,  it  was  held  the  canal  company  were  not  thereby 
exonerated  from  maintaining  the  bridge,  but  were  liable  to  the 
land-owner  the  same  as  before  the  alteration  by  the  railway  com- 
pany, notwithstanding  any  liability  which  might  rest  upon  the 
railway  company.^" 

10.  Where  a  railway  crossed  on  a  level  a  considerably  fre- 
quented footpath,  and  there  was  no  servant  of  the  company  at  the 
crossing  to  warn  persons  of  the  approach  of  the  trains,  the  view 
being  somewhat  obstructed  by  the  pier  of  the  bridge,  but  a  person 
before  reaching  the  track  could  see  nearly  three  hundred  yards 
either  way  along  the  line,  and  the  plaintiff's  wife,  while  crossing 
the  line  at  the  spot  was  run  over  and  killed,  it  was  held  that  the 
fact  of  the  company  not  keeping  a  servant  at  the  crossing  to  warn 

*  Wellcome  r.  Leeds,  61  Me.  313. 
»  Murphy  r.  City  of  Chicago,  29  111.  279. 
>**  Ammennon  v.  Wyoming  Land  Co.,  40  Penn  St.  256. 
•542 


§  133.        LIABILITY  FOR  INJURY  IN  THE  NATURE   OP   TORTS.  541 

persons  of  the  approach  of  trains,  was  not  evidence  of  negligence 
to  go  to  the  jury." 

*  11.  And  where  it  was  made,  by  statute,  the  duty  of  a  railway 
company  to  maintain  gates  at  all  level  crossings  of  highways,  and 
to  have  persons  to  open  and  shut  them  when  any  one  wished  to 
pass,  but  at  all  other  times  they  were  to  be  kept  shut,  and  a  yer- 
son  coming  along  the  highway  when  no  servant  of  the  company 
was  present,  as  he  should  have  been,  to  open  and  shut  the  gates, 
the  plaintiff  having  waited  a  reasonable  time  opened  the  gates 
himself  in  order  that  he  might  be  able  to  proceed  on  his  journey, 
and  in  doing  so  was  injured  by  the  closing  of  .the  gates,  which 
were  so  constructed  as  to  fall  back  into  their  places  with  their 
own  weight,  it  was  held  the  action  would  not  lie,  one  judge  dissent- 
ing." This  case  was  decided  mainly  upon  the  ground  that  by  the 
act  of  parliament  requiring  the  gates  to  be  kept  closed,  except  when 
opened  by  the  servants  of  the  company,  it  amounted  to  a  virtual 
prohibition  of  any  one  crossing  the  railway  at  any  other  time,  and 
if  the  plaintiff  found  no  servant  of  the  company  to  open  the  gate,  it 
was  his  duty  to  wait  until  he  could  find  one,  and  seek  his  remedy 
for  the  delay  against  the  company  ;  and  being  a  wrong-doer  in  open- 
ing the  gate,  he  could  not  recover  of  the  company  for  any  injury 
he  thereby  sustained. 

•SECTION   V. 

Liability  for  Injury  in  the  Nature  of  Torts. 


1.  Railwatf  crosaingt  upon  a  level  aboaya 

dangeroxu. 

2.  Company  not  excused  by  use  of  the  signals 

required  by  statute. 
8.  Party  cannot  recover  if  his  own  act  con- 

tributed  to  injury. 
4.   But  company  liable  still  if  they  might  have 

avoided  the  injury. 
6.   If  company  omit  jrroper  signals,  not  liable, 

mdess  that  produce  the  injury. 

6.  Nat  liable  for  injury  to  cattle  trespassing, 

m&n  guilty  of  wilful  wrong. 

7.  General  d^nitions  of  company's  duty. 


8.  Action  accrues  from  the  accruing  of  the 

injury. 

9.  Where  injury  is  wanton,  jury  may  give 

exemplary  damages. 

10.  One  who  follows  direction  of  gate-keeper 

excused. 

11.  Company  responsible  for  injury  at    a 

crossing  opened  by  themselves  for  public 
use. 

12.  The  responsibility  of  railway  companies 

for  damages  to  persons  crossing,  mainly 
matter  of  fact,  and  each  case  depends 
on  its  peculiar  circumstances. 


§  133.  1.  We   have  discussed  the  subject  of  this  chapter,  in 

'     "  Stapley  r.  London,  Brighton,  «Sbc.,  Railw.  Co.,  Law  Rep.  1  Exch.  21 ;  s,  c. 
11  Jur.  N.  S.  954. 

"  Wyatt  V.  Great  Western  RaUw.  Co.,  6  B.  &  S.  709 ;  s.  c.  11  Jur.  N.  S.  826. 

•643,644 


542    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

general,  in  former  sections.^  "We  shall  here  refer  to  some  cases, 
where  railway  companies  have  been  held  liable  for  injuries  to 
persons,  in  no  way  connected  with  them  by  contract  or  duty. 
The  subject  of  railway  crossings,^  on  a  level  with  the  highway, 
has  been  before  alluded  to,  as  one  demanding  the  grave  consider- 
ation of  the  legislatures  of  the  several  states.  It  causes  always 
a  most  painful  sense  of  peril,  especially  where  there  is  any  consid- 
erable travel  upon  the  highway,  and  is  followed  by  many  painful 
scenes  of  mutilation  and  death,  under  circumstances  more  dis- 
tressing, if  possible,  than  even  the  accidents,  so  destructive  some- 
times to  railway  passengers. 

2.  In  a  case^  where  the  plaintiff  was  injured  at  a  railway 
crossing,  by  collision  with  an  engine,  it  was  held  that  where  the 
statute  required,  at  such  points,  certain  specified  signals,  the 
compliance  with  the  requirements  of  the  statute  will  not  excuse 
*  the  company  from  the  use  of  care  and  prudence  in  other  re- 
spects. That  it  is  not  necessarily  enough  to  excuse  the  company, 
that  they  pursued  the  usual  course  adopted  by  engineers  in  such 
cases.  The  question  of  negligence  is  one  of  fact,  in  such  cases, 
to  be  submitted  to  the  jury,  under  all  the  circumstances  of  the 
case,  and  to  be  determined  by  them,  upon  their  view  of  what 
prudence  and  skill  required. 

3.  But  when  the  statute  requires  certain  precautions  against 
accidents,  and  its  requirements  are  disregarded,  the  party  suffer- 
ing damage  is  not  entitled  to  recover,  if  he  was  himself  guilty  of 
negligence  which  contributed  to  the  damage.*    And  where  the 

'  Ante,  §  130,  post,  177. 

'Ante,  I  108. 

^  Bradley  v.  Boston  &  Maine  Railw.,  2  Cush.  639.  Some  distinction  is  made 
by  the  judge,  in  trying  this  case,  between  those  cases  of  negligence  which  occur 
in  long-established  modes  of  business,  and  the  case  of  the  management  of  rail- 
way trains  ;  that  in  the  former  case  usage,  if  uniform  and  acquiesced  in  by  the 
public,  may  amount  to  a  rule  of  law ;  but  not  in  a  business  so  recent  as  the 
management  of  railway  trains.  This  view  seems  to  be  sanctioned  by  the 
Supreme  Court  in  revising  the  case.  See,  also,  Gleason  v.  Briggs,  28  Vt.  185 ; 
Linfield  v.  Old  Colony  Railway,  10  Cush.  562. 

*  Parker  «.  Adams,  12  Met.  415;  post,  §  177;  Macon  &  W.  Railw.  v,  Davis, 
18  Georgia,  679,  where  the  question  of  negligence  in  the  conductors  of  a  rail- 
way train  in  passing  a  road-crossing,  is  held  to  be  one  of  fact  depending  upon 
the  circumstances  of  each  particular  case.  Dascomb  v.  I^uffalo  &  State  Line 
Railw.,  27  Barb.  221.  But  the  omission  of  any  statute  duty  by  railway  com- 
panies at  the  time  and  place  where  an  accident  occurs  is  prima  facie  evidence 
*545 


§  133.        LIABILITY   FOB  INJURY   IN   THE  NATURE   OF   TORTS.  543 

*  plaintiflTs  farm  was  intersected  by  the  line  of  a  railway,  and  he, 
witli  a  wagon  and  one  horse,  having  his  son  and  a  servant  with 

of  liability.  Aug.  &  Sav.  Railw.  r.  McElmurry,  24  Ga.  75.  In  Johnson  r. 
Hudson  River  Railw.,  6  Duer,  G33,  where  the  plaintiflTs  husband  was  killed  in 
the  streets  of  the  city  of  New  York  by  one  of  defendants'  freight  cars  in  the 
night-time,  it  being  verj-  dark,  and  the  company  using  neither  lights  nor  bells  to 
guard  against  accident ;  it  was  held,  that  although  the  law  required  of  defend- 
ants only  ordinarj'  care  towards  the  deceased,  it  must  be  measured  by  the  degree 
of  peril  against  which  such  care  is  to  be  exercised,  which,  under  the  circum- 
stances, was  so  extreme  as  to  justify  the  court  in  telling  the  jury  that  defend- 
ants were  required  to  use  every  precaution  in  their  power  to  insure  the  safety 
of  persons  passing ;  and  that  if  lights  or  bells  would  have  contributed  to  that 
end,  they  were  culpable  for  not  using  them ;  and  that  in  this  form  the  question 
of  negligence  was  properly  submitted  to  the  jur}'  as  one  of  fact. 

It  was  also  held  that  the  deceased  was  only  bound  to  the  exercise  of  ordinary 
care,  and  that  his  being  found  upon  the  track  was  not  sufficient  ground  to  pre- 
clude the  recovery.  In  the  case  of  Wakefield  v.  Conn.  &  Pass.  Rivers  Railw., 
87  Vt.  330,  it  was  held,  that  the  requirements  of  the  statute  in  regard  to  blowing 
the  whistle  and  ringing  the  bell,  a  prescribed  distance  before  crossing  the  highway, 
was  a  duty  of  the  company  not  only  in  reference  to  travellers  about  crossing  the 
track  of  the  railway,  but  with  reference  to  all  persons,  who  being  lawfully  at  or 
in  the  vicinity  of  the  crossing,  are  exposed  to  accident  or  injury  by  reason  of 
the  passing  train,  short  of  actual  contact  with  it.  And  it  is  further  said  here, 
that  although  there  might  be  cases  in  which  the  company  would  be  excused  from 
a  strict  compliance  with  the  statute,  and  might  be  justified  in  omitting  the 
signals,  in  all  cases  of  such  omission,  where  damage  ensued  in  consequence,  the 
company  must  show  that  they  were  justified  in  the  omission.  This  seems  rather 
a  loose  view  to  be  taken  of  a  peremptory  statutory  requirement,  that  the  party 
is  to  exercise  a  discretion  when  to  comply.  Ab  a  general  rule,  the  party  must 
omit  any  such  requirement  at  the  peril  of  all  legal  consequences.  But  the  court 
seem  to  suppose  that  the  statute  in  imposing  a  penalty  for  the  "  unreasonable" 
omission  of  such  signals  must  have  contemplated  cases  of  reasonable  omission. 
That  may  be  so ;  but  it  would  be  more  satisfactory  to  the  common  mind  to  find 
such  an  important  qualification  of  the  leading  provision  of  the  statute,  more 
explicitly  declared,  than  by  so  indirec^  an  inference.  We  do  not  suppose  any 
such  construction  could  sai'ely  be  applied  to  these  statutes  generally.  It  would 
be  sure  to  result  in  a  virtual  repeal  or  disregard  of  the  statute.  It  would  be  far 
more  salutar}'  to  have  the  engineer  understand  that  he  bad  no  discretion  in  the 
matter,  that  be  must  give  the  signals  regardless  of  consequences. 

In  an  important  case,  Shaw  c.  Boston  &  Worcester  Railw.,  8  Gray,  45,  the 
subject  of  injuries  at  railway  and  highway  intersections  is  a  good  deal  discussed. 
Fast,  §  179,  pi.  9  &  n.  It  is  here  decided  that  the  record  of  the  county  commis- 
sioners stating  that  in  their  opinion  no  fiagman  at  the  crossing  was  necessary,  is 
not  competent  to  show  due  care  on  the  part  of  the  company  in  omitting  that 
precaution.  The  court  said  it  was  the  duty  of  the  judge  in  charging  the  jury  in 
regard  to  the  precautions  required  to  be  taken  by  a  railway  company  at  a  lugh- 
way  crossing,  to  distinguish  between  such  circumstances  as  could  have  been 

•646 


644     LUBILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

him,  drove  upon  a  trot  directly  over  the  track  at  a  public  cross- 
ing, without  taking  the  slightest  precaution  to  ascertain  whether 
a  locomotive  was  coming,  it  was  held  that  he  was  guilty  of  great 
carelessness,  and  that  he  could  not  recover  for  any  damage  there- 
by sustained,  and  that  it  was  immaterial  whether  the  train  was 
on  time  or  not.  It  was  also  held,  that  the  question  of  negligence, 
in  a  case  of  this  character  where  the  testimony  was  all  one  way, 
was  one  of  law  to  be  decided  by  the  court  and  could  not  be  left 
to  th\3  jury.^  The  company  are  bound  to  maintain  a  sign-board 
and  other  precautions,  required  by  statute  at  railway  crossings, 
at  the  place  where  an  opened  travelled  street  in  a  city  intersects 
the  railway,  although  the  street  has  not  been  so  laid  out  and  es- 
tablished by  the  municipal  authorities  as  to  make  the  city  respon- 
sible for  damages  occasioned  by  defects  therein,  such  passage 
being  a  "  travelled  route "  within  the  meaning  of  the  statute.® 
But  it  has  been  held,  that  the  company  is  not  liable  for  not  con- 
structing an  under  pass  for  the  accommodation  of  the  public 
travel,  on  a  way  which  was  not  laid  out  agreeably  to  the  statute, 
and  had  not  been  in  use  by  the  public  twenty  years.'''  It  is  such 
negligence  for  a  deaf  man  to  drive  an  unmanageable  horse  across 
a  railway  track  when  a  train  is  approaching,  that  he  cannot 
recover  for  any  damage  sustained.  He  should  wait  and  avoid 
exposure.^ 

reasonably  anticipated,  and  such  as  would  have  required  extraordinary  precau- 
tions, but  were  of  so  extraordinary  a  character  as  not  to  have  been  anticipated. 
It  was  also  held  a  fatal  variance  that  the  proof  showed  the  injury  to  have  occurred 
some  rods  out  of  the  highway  where  the  plaintiflTs  horse  drew  the  carriage  by 
reason  of  being  frightened  by  defendants'  locomotive  engine,  the  declaration 
charging  it  to  have  occurred  while  travelling  in  the  highway,  and  the  declaration 
cannot  be  amended  after  verdict  so  as  to  cure  the  variance.  Also  that  the 
degree  of  care  required  of  the  company  and  travellers,  at  a  railway  and  highway 
crossing,  is  the  same,  being  that  which  men  of  ordinary  capacity  would  exercise 
under  like  circumstances.  The  fact  that  a  collision  occurred  at  a  railway  cross- 
ing, and  that  the  plaintiff  was  in  no  fault,  is  not  proof  that  the  defendant  was  in 
fault. 

»  Dascomb  v.  Buffalo  &  State  Line  Railw.,  27  Barb.  221 ;  Mackey  v.  New 
York  Central  Railw.,  27  Barb.  528.  It  would  seem  to  be  the  duty  of  one  about 
to  pass  a  railway  to  exercise  watchfulness  to  know  that  a  train  is  not  approach- 
ing,    lb. 

"  Whitaker  v.  Boston  &  Maine  Railw.,  7  Gray,  98.  But  later  statutes  adopt 
a  different  phraseology. 

'^Northumberland  r.  At.  &  St.  Law.  R.  Co.,  35  N.  H.  '574. 

^'lll.  Cent.  R.  Co.  v.  Buckner,  28  HI.  299.     This  question,  both  as  to  the 


§  133.        LIABILITY   FOB  INJURY  IN  THE   NATURE   OP  TORTS.  545 

*  4.  If  the  plaintifTs  negligence  did  not  contribute  to  his  injury, 
it  will  not  preclude  his  recovering  for  the  consequences  of  defend- 

caae  required  of  the  company  and  the  person  crossing  a  railway,  ia  considered 
and  discussed,  in  Ernst  r.  Hudson  River  Railw.,  35  N.  Y.  9,  and  the  following 
proposition  maintained.  The  omission  of  a  railway  company  to  give  the  signals 
required  by  the  statute  on  the  approach  of  a  locomotive  within  eighty  rods  of  a 
highway  crossing,  is  a  breach  of  duty  to  the  passengers,  whose  safety  it  imperils, 
and  to  the  wayfarer,  whom  it  exposes  to  mutilation  and  death. 

Such  a  crossing  is  dangerous,  only  when  the  company  makes  it  so  by  pro- 
pelling its  engines  across  it;  and  the  statute,  therefore,  for  the  protection 
of  human  life,  exacts  public  warning  of  the  approach  of  such  danger.  The 
injunction  is  plain  and  absolute,  and  the  company  who  violates  it  does  so  at  its 
peril. 

The  omission  of  the  customar}-  signals  is  an  assurance  by  the  company  to  the 
traveller,  that  no  engine  is  approaching  from  either  side  within  eighty  rods  of 
the  crossing ;  and  he  may  rely  on  such  assurance,  without  incurring  the  imputa- 
tion of  breach  of  duty  to  a  wrong-doer. 

When  the  passer-by  knows  of  the  immediate  proximity  of  an  advancing  train, 
whether  the  warning  be  by  signals  or  otherwise,  and,  having  a  safe  and  season- 
able opportunity  to  stop,  he  voluntarily  takes  the  risk  of  crossing  in  front  of  it, 
he  is  guilty  of  culpable  negligence,  and  forfeits  all  claims  to  redress. 

But  when  the  usual  warning  is  withheld,  the  wayfarer  has  a  right  to  assume 
that  the  crossing  is  safe,  and  that  the  company  is  not  violating  the  law,  and 
endangering  human  life,  by  running  an  engine  without  signals. 

The  citizen,  on  the  public  highway,  is  bound  only  to  the  exercise  of  ordinary 
care  ;  and  when  he  is  injured  by  the  negligence  of  a  railroad  company,  it  is  no 
answer  to  his  claim  for  redress,  that,  notwithstanding  the  omission  of  the  signals, 
he  might,  by  greater  vigilance,  have  discovered  the  approach  of  the  train,  if  he 
had  foreseen  a  violation  of  the  statute,  instead  of  relying  upon  its  observance. 

The  traveller  is  not  bound  to  stop  on  the  highway,  or  to  look  up  and  down  an 
intersecting  railway  track  before  crossing,  when  there  are  no  signals  of  an  ap- 
proaching engine. 

Ordinarily,  in  cases  of  this  description,  the  question  whether  the  party  injured 
was  free  from  culpable  negligence,  is  one  of  fact  to  be  determined  by  the  jury, 
under  appropriate  instructions,  and  subject  to  the  revisory  power  of  the 
courts. 

Where  the  proof  is  undisputed  and  decisive,  that  the  plaintiff  was  guilty  of 
misconduct,  and  that  this  contributed  to  the  injury,  a  nonsuit  is  matter  of  right; 
but  it  is  equally  matter  of  right  to  have  the  issue  of  negligence  submitted  to  the 
jurj-,  when  it  depends  on  conflicting  evidence,  or  on  inferences  to  be  deduced 
from  a  variety  of  circumstances,  in  regard  to  which  there  is  room  for  fair  differ- 
ence of  opinion  between  intelligent  and  upright  men. 

The  same  view  is  maintained  and  further  illustrated  in  the  subsequent  case 
of  Renwick  r.  New  York  Central  Railw.,  36  N.  Y.  132.  It  seems  to  us  these 
cases  develop  a  very  important  and  most  unquestionable  rule  of  responsibility 
on  the  part  of  railway  companies,  in  regard  to  injuries  to  persons  at  highway 
crossings;  i.e.,  that  the  companies,  when  omitting  the  customary  and  rei{uired 

35  •647 


546    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

ant's  wrong.*  If  the  wrong  on  the  part  of  the  defendant  is  so 
*  Wanton  and  gross  as  to  imply  a  willingness  to  inflict  the  injury, 

signals  before  arriving  at  such  crossings,  should  expect  a  proportionally  less 
degree  of  watchfulness  on  the  part  of  travellers.  That  is  certainly  natural, 
almost  inevitable.  In  such  a  case  the  company  ought  not  to  complain,  if  held 
responsible  for  all  consequences  not  the  result  of  absolute  foolhardiness.  In 
State  of  Maryland  v.  Baltimore  &  Ohio  Railw.,  5  Am.  Law  Reg.  N.  S.  397,  8.C. 
24  Md.  84,  it  was  held,  that  the  plaintiff  cannot  recover  for  an  injur)-  resulting  from 
the  negligence  of  the  defendant,  provided  he  might,  himself,  by  the  exercise  of 
proper  prudence,  care,  and  skill,  have  escaped  from  its  consequences,  or  where  his 
own  want  of  such  prudence,  care,  and  skill  directly  contributed  to  produce  the 
damage  complained  of.  Railways  owe  a  higher  degree  of  watchfulness  to  their 
passengers  than  to  mere  strangers.  In  the  former  case  the  utmost  care  and  skill 
is  required,  in  order  to  avoid  injuries ;  but  in  the  latter  case,  only  such  as  skilful, 
prudent,  and  discreet  persons,  having  the  management  of  such  business  in  such 
a  neighborhood,  would  naturally  be  expected  to  put  forth. 

*  Kennard  r".  Burton,  25  Maine,  39.  In  the  newspaper  report  of  a  recent 
trial  in  the  Supreme  Court  of  Pennsylvania,  the  court  are  reported  to  have 
charged  the  jury,  as  matter  of  law,  that  "  a  person  about  to  cross  a  railway  track 
[with  a  team]  is  in  duty  bound  to  stop  and  look  in  both  directions,  and  listen  be- 
fore crossing."  It  has  recently  been  decided  by  the  fuU  bench  Supreme  Court 
in  Massachusetts,  ante,  n.  4,  that  it  is  not  competent  for  the  judge  to  lay  down 
any  definite  rule,  as  to  the  duty  of  the  company,  in  regard  to  proper  precautions 
in  crossing  highways ;  that  the  circumstances  attending  such  crossings  are  so  in- 
finitely diversified  that  it  must  be  left  to  the  jury  to  determine  what  is  proper 
care  and  diligence  in  each  particular  case.  This  we  apprehend  is  the  true  rule 
upon  that  subject,  both  as  to  the  company  and  travellers  upon  the  highway,  and 
that  it  will  finally  prevail,  notwithstanding  occasional  attempts  to  simplify  the 
matter  by  definitions.  The  Pennsylvania  case  referred  to  is  that  of  O'Brien  r. 
Philadelphia,  Wilmington,  &  Baltimore  Railw.,  10  Am.  Railw.  T.  No.  10,  13. 
The  following  extracts  fi-om  the  charge  to  the  jury  may  serve  to  explain  the 
views  of  the  court. 

But  if  the  jury  find  that  the  company  were  not  faultless,  that  they  did  or 
omitted  any  thing  that  would  constitute  negligence  as  I  have  defined  it,  the  next 
inquiry-  will  relate  to  the  conduct  of  the  plaintiflf. 

He  was  a  carter,  and  the  same  general  principles  apply  to  him  as  to  the 
defendants.  He  was  bound  to  pursue  his  business  with  aU  that  regard  to  the 
safety  of  himself  and  others  which  prudent  men  commonly  employ  in  like  occu- 
pations. Did  he  demean  himself  in  that  manner  ?  In  answer  to  the  6th  and  7th 
points  on  the  part  of  the  defendants,  I  instruct  the  jur}-  that  a  carter,  or  any  man 
having  charge  of  a  team,  but  who  is  about  to  cross  a  railroad  at  grade  on  which 
locomotives  run,  is  bound  to  stop  and  listen,  and  look  in  both  directions,  before 
he  permits  his  team  to  set  foot  within  the  rails,  and  omission  to  do  ^o  is  negli- 
gence on  his  part.  This  rule  of  law  is  demanded  by  a  due  regarf  to  the  safety 
of  life  and  property,  both  his  own  and  that  which  is  passing  on  the  railroad. 
From  the  diagram  in  evidence  it  is  perfectly  apparent  thab  the  plaintiff  could  have 
seen  the  approaching  train  if  he  had  looked.     If  he  saw  it,  it  was  extreme  rash- 

*  648 


§  133.        LIABILITY  FOR  INJURY   IN   THE   NATURE  OF  TORTS.  547 

plaintiff  may  recover,  notwithstanding  his  own  ordinary  neglect.**' 
And  this  is  always  to  be  attributed  to  defendant,  if  he  might 
have  avoided  injuring  plaintiff,  notwithstanding  his  own  negli- 
gence. So,  too,  if  the  neglect  on  the  part  of  the  plaintiff  is  not 
the  proximate  cause  of  the  injury,  it  will  not  preclude  a  re- 
covery." 

5.  If  a  railway  wholly  omit  to  give  the  proper  signal  at  a  road- 
crossing,  they  are  not  necessarily  liable  for  injury  to  one  crossing 
at  that  moment,  whose  team  took  fright  and  injury  ensued.  It 
should  be  shown  that  the  omission  had  some  tendency  to  pro- 
duce the  loss.^  The  statute  requiring  railway  companies  to 
make  signals  in  all  cases  of  crossing  highways,  applies  to  cross- 
ings above  or  below  the  grade  of  the  highway,  as  well  as  to  those 
at  grade.^ 

6.  A  conductor  was  held  not  liable  for  running  the  engine  over 
an  animal  trespassing  upon  the  track,  unless  he  acted  wilfully." 

ncss  in  him  to  allow  his  lead  horse  to  advance  so  far,  and  if  he  did  not  see  it,  it 
must  have  been  because  he  did  not  look. 

I  state  the  general  rule,  but  whether  it  is  applicaBle  to  the  plaintiff  in  the  cir- 
cumstances which  surrounded  him  is  for  the  jury.  A  few  yards  on  his  right, 
some  witnesses  think  seventy,  there  was  a  gravel  train,  with  a  locomotive 
attached,  standing  on  one  of  the  tracks,  and  liable  to  start  any  moment,  and  on 
bis  lefl,  according  to  his  witnesses,  was  the  omnibus  in  close  proximity  to  the 
crossing. 

Now,  for  these  circumstances  the  plaintiff  was  in  no  wi8e*re8ponsible,  and  the 
question  is,  whether  they  constituted  any  excuse  for  his  not  looking  up  the 
road. 

In  Brooks  v.  Buffalo  &  Niagara  Falls  Railw.,  25  Barb.  600,  it  is  said  if  one 
cross  a  railway  at  grade  with  a  team,  where  the  danger  may  easily  be  seen  by 
looking  for  it,  and  especially  where  he  drives  upon  the  railway  track  and  there 
stops,  looking  in  an  opposite  direction  from  an  approaching  train  till  it  strikes 
him,  he  is  guilty  of  such  negligence  as  will  preclude  a  recovery. 

'"  Wynn  v.  Allard,  6  Watts  &  Serg.  624;  Kerwhaker  r.  C.  C.  &  Cincinnati 
Railw.,  3  Ohio,  N.S.,  172,  188. 

"  Trow  V.  Vermont  Central  Railw.,  24  Vt.  487 ;  IsbeU  r.  N.  Y.  &  N.  H. 
Railw.  Co.,  27  Conn.  393;  Chicago  «fe  R.  I.  Railw.  v.  Still,  19  Illinois,  499. 

'*  Galena  &  Ch.  Railw.  r.  Loomis,  13  Illinois,  548.  A  railway  is  not  liable 
for  an  injury  which  happens  in  crossing  a  railway,  in  consequence  of  the  station- 
ary cars  of  the  company,  upon  their  track,  obstructing  the  view  of  the  plaintiff 
in  his  approach  to  the  road.  Burton  r.  The  Railw.  Co.,  4  Harr.  252.  See  also 
Morrison  v.  Steam  Nav.  Co.,  20  Eng.  L.  &  Eq.  267,  456 ;  8  Exch.  733. 

»  People  V.  New  York  Central  Railw.,  25  Barb.  199. 

"*  Vandegrifl  v.  Rediker,  2  Zab.  185.  But  where  the  act  is  wrongful,  the 
action  may  be  against  both  the  engineer  and  fireman.  Suydam  v.  Moore, 
8  Barb.  358. 


548    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

So,  too,  where  the  train  passed  over  slaves  asleep  upon  the  track, 
the  company  were  held  not  liable.^^ 

"  Herring  v.  Wil.  &  R.  Railw.,  10  Iredell,  402.  In  this  case,  it  is  held  that 
the  engineer  might  not  be  chargeable  with  the  same  degree  of  culpability  in 
driving  his  train  over  a  rational  creature,  or  one  who  seemed  to  be  such,  and  in 
the  exercise  of  his  faculties,  as  in  doing  the  same  when  the  obstruction  was 
a  brute  animal.  And  in  the  case  of  running  over  a  person  asleep,  or  a  deaf- 
mute,  or  an  insane  person,  some  indulgence  is,  doubtless,  to  be  extended,  inas- 
much as  the  peculiar  state  of  the  person  might  not  be  readily  discoverable  by 
those  in  charge  of  the  train,  if  not  they  would  have  a  right  to  calculate  that  they 
would  conduct  like  other  rational  beings,  and  step  off  the  track  as  the  engine 
approaches.  But  in  East  Tennessee  &  Ga.  Railw.  v.  St.  John,  5  Sneed,  524,  it 
was  held  that  the  company  were  responsible  for  killing  a  slave  asleep  on  the 
track,  who  might  have  been  seen  by  the  conductor  a  quarter  of  a  mile,  but 
who  was  mistaken  for  the  garments  of  the  laborers,  and  no  signal  given  in 
consequence. 

The  practice  of  allowing  persons  to  walk  upon  a  railway  track  is  a  vicious  one, 
and  one  which  would  not  be  tolerated  in  any  state  or  country  where  the  railways 
are  under  proper  surveillance  and  police.  But  as  it  now  is  in  many  parts  of  this 
country,  an  engineer  will  find  some  person  upon  his  track  every  mile,  and,  in 
some  places,  every  few  rods.  If  he  were  required  to  check  the  train  at  every 
such  occurrence,  it  would  become  an  intolerable  grievance.  If  men  will  insist 
upon  any  thing  so  absurd  as  to  be  permitted  to  walk  upon  a  railway  track  at  will, 
they  must  expect  that  those  who  are  bereft  of  sense,  but  preserve  the  form  of 
humanity,  when  they  chance  to  come  into  the  same  peril,  will  perish ;  not  so 
much  from  their  own  infirmities,  as  from  the  absurd  practices  of  those  who  have 
no  such  infirmities.  And  their  destruction  is  not  so  much  attributable,  perhaps, 
to  the  fault  of  the  railways,  as  to  the  bad  taste,  and  lawlessness  of  public  opinion, 
in  making  such  absurd  demands  upon  the  indulgence  of  railways.  And,  if  it  be 
urged  that  the  companies  might  enforce  their  rights,  and  keep  people  off  their 
tracks,  it  would  be  found,  we  fear,  upon  trial,  that  such  arguments  are  unsound. 
The  companies,  probably,  could  not  enforce  such  a  regulation,  in  many  parts  of 
the  country,  without  exciting  a  perplexing  and  painful  prejudice,  to  such  an  ex- 
tent as  to  endanger  the  safety  of  their  business.  The  only  effectual  remedy  will 
be  found  in  making  the  act  punishable  by  fine  and  imprisonment,  as  is  done  in 
England  and  some  of  the  American  states,  and  in  a  strict  enforcement  of  the 
law  upon  all  offenders.  Every  one  can  see  that,  if  sane  persons  were  excluded 
from  the  railway,  the  sight  of  a  person  upon  the  track  would  at  once  arrest  the 
attention  of  conductors  of  trains,  and  there  would  be  little  danger  comparatively 
of  their  destruction,  whereas  now,  persons  bereft  of  sense  are  almost  sure  to  be 
run  over. 

Persons  are  so  frequently  upon  the  track  that  the  conductors  have  no  alterna- 
tive but  to  push  their  trains  upon  them.  For  such  persons  are,  not  unfrequently, 
80  reckless,  that,  if  they  could  alarm  engineers,  they  would  be  found  trying  such 
experiments  every  hour. 

One  who  was  engaged  in  sawing  wood  upon  the  track  of  a  railway  by  direc- 
tion of  the  superintendent  of  the  company,  and  is  injured  by  the  engine  of 


§  133.         LIABILITY  FOB  INJUBT  IN  THE  NATUBE  OP  T0BT8.  549 

*  7.  The  duty  required  of  railways  towards  those  who  are,  at 
the  time,  in  the  exercise  of  their  legal  rights,  is  the  possession  of 
*  the  most  approved  machinery,  and  such  care,  diligence,  and  skill 
in  using  it  as  skilful,  prudent,  and  discreet  persons  would  be  ex- 
pected to  put  forth,  having  a  proper  regard  to  the  interests  of  the 
company,  the  demands  of  the  public,  and  the  interests  of  those 
having  property  along  the  road,  exposed  to  fire,  and  to  injury  in 
other  modes. 1^  They  are,  at  least,  bound  to  exercise  as  much 
care  as  if  they  owned  the  property  along  the  line,  i.e.,  what 
would  be  regarded  as  the  duty  of  a  prudent  owner  under  all  the 
circumstances.*"    It  has  been  held  that  the  company,  when  their 

another  company,  lawfully  upon  the  track,  cannot  recover  of  the  latter  company, 
although  their  engineer  was  guilty  of  carelessness,  being  himself  also  in  fault. 
Railroad  v.  Norton,  24  Penn.  St.  -465.  In  Ranch  r.  Lloyd  &  Hill,  31  Penn.  St. 
358,  it  was  decided,  that  where  the  state  owned  the  railway,  and  its  regulations 
were  prescribed  by  the  canal  commissioners,  and  the  state  supplied  the  motive 
power,  and  allowed  persons  to  use  their  cars,  furnishing  a  conductor,  that  such 
conductor  is  the  responsible  person  in  charge  of  the  train  throughout  its  entire 
route.  That  the  agencies  provided  for  him,  whether  of  steam,  or  horse  power, 
become  his  agencies,  and  the  ultimate  responsibility  in  regard  to  their  proper 
conduct,  so  far  as  strangers  are  concerned,  rests  upon  him  and  upon  the  owners 
of  the  train,  whose  servant  he  is.  And  that  where  it  was  the  practice  to  have 
cars  pass  over  a  portion  of  the  road  by  the  force  of  gravity,  and  after  arriving 
at  a  given  point,  to  be  drawn  by  horse  power  to  the  storehouses,  and  the  con- 
ductor left  them  standing  across  the  usual  crossing  of  the  highway  and  went  to 
his  breakfast,  and  during  his  absence  a  lad,  seven  years  old,  attempted  to  crawl 
under  the  cars,  in  returning  from  an  errand  on  which  he  had  been  sent,  and  by 
means  of  the  starting  of  the  train  by  the  horse  power,  furnished  by  a  stable- 
keeper,  by  contract  with  the  state,  and  driven  by  the  proprietors'  drivers,  was 
seriously  injured,  it  was  considered  that  the  conductor  and  his  employers  were 
responsible  for  the  injury. 

It  was  also  decided  that  where  cars  were  so  left  standing  in  the  highway  un- 
necessarily, it  is  not  a  question  to  be  submitted  to  the  jury,  whether  they  con- 
stitute an  unlawful  obstruction.  As  matter  of  law,  such  obstruction,  if  it  could 
be  avoided,  is  unlawful. 

In  such  a  case,  no  greater  care  and  prudence  is  required  to  be  exercised  by 
such  child  than  it  is  reasonable  to  expect  of  one  of  such  tender  years.  See 
Galena  &  Ch.  Railw.  c.  Jacobs,  20  111.  478. 

'•  Baltimore  &  Susq.  Railw.  v.  Woodruff,  4  Maryland,  242,  257.  And  it  is 
said  in  Mersey  Docks  v.  Gibbs,  Law  Rep.  1  II.  Lds.  93,  that  if  one  would  be 
responsible  for  injury  resulting  from  a  cause  of  mischief,  of  whose  existence  he 
has  knowledge,  he  will  be  equally  so  if  he  is  negligently  ignorant  of  its 
existence. 

"  Quimby  r.  Vermont  Central  Railw.,  23  Vt.  887.  And  where  one  was  in- 
jured by  the  company's  train,  at  a  road-crossing,  by  collision  between  the  com- 

*  549,  550 


550    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

*  road  passes  the  thoroughfares  of  a  city,  are  bound  to  use  extraor- 
dinary care  not  to  injure  persons  in  the  streets.^^ 

8.  Tlie  general  rule,  in  regard  to  the  time  of  the  accruing  of 
the  action  is,  that  when  the  act  or  omission  causes  direct  and 
immediate  injury,  the  action  accrues  from  the  time,  of  doing  the 
act,  but  where  the  act  is  injurious  only  from  its  consequences, 
as  by  undermining  a  house  or  wall,  or  causing  water  to  flow 
back  at  certain  seasons  of  high  tide  or  high  water,  the  cause  of 
action  accrues  only  from  the  consequential  injury .^^  In  the  case 
of  Backhouse  v.  Bonomi,'*  it  was  held  that  no  cause  of  action 
accrued  from  defendant's  excavation  in  his  own  land,  until  it 
caused  damage  to  the  plaintifiPs ;  and  the  case  of  Nicklin  v.  Wil- 
liams,^^  as  fiir  as  it  conflicts  with  this,  was  held  not  maintainable. 
The  cases  were  examined  very  thoroughly  in  the  course  of  the 
discussion  of  this  case  before  the  Queen's  Bench,  which  held  that 
the  cause  of  action  accrued  from  the  act  of  defendant,  and  in 
the  Exchequer  Chamber,  where  that  judgment  was  reversed,  and 
finally  in  the  House  of  Lords,  where  the  judgment  of  the  Ex- 
chequer Chamber  was  affirmed.  The  law  on  this  point  may  now 
be  considered  settled  in  the  English  courts.  Where  the  issue  is 
in  regard  to  the  prudent  use  of  a  highway  by  the  company,  it  is 

pany's  locomotive  and  the  carriage  in  which  the  plaintiff  was  riding,  it  was  held, 
that  the  carelessness  of  the  driver  of  the  carriage  cannot  be  shown  by  common 
reputation.  Nor  can  the  occupation  of  the  plaintiff,  and  his  means  of  earning 
support,  be  shown,  with  a  view  to  enhance  the  damages  for  such  an  injur)', 
unless  specially  averred  in  the  declaration.  Baldwin  v.  Western  Railw.,  4  Gray, 
833.  In  O'Brien  v.  Philadelphia,  Wilmington  &  Baltimore  Railw.,  10  Am. 
Railw.  Times,  No.  13,  where  plaintiff  was  injured  at  a  railway  crossing  a 
highway,  by  collision  with  his  team,  Mr.  Justice  Woodward,  of  the  Pennsylvania 
Supreme  Court,  charged  the  jury,  that  the  plaintiff  was  only  entitled  to  com- 
pensatory damages,  there  being  no  pretence  of  any  intentional  wrong,  or  fla- 
grant rashness,  on  the  part  of  the  agents  of  the  company. 

'*  Wilson  V.  Cunningham,  3  Cal.  241. 

"  Roberts  v.  Read,  16  East,  215.  Where  the  act  complained  of  was  mali- 
ciously opposing  plaintiff's  discharge  as  an  insolvent,  and  the  act  was  more  than 
six  years  before  action  brought,  but  the  consequent  imprisonment  continued 
within  the  six  years,  it  was  held  the  cause  of  action  was  barred.  Violet  ».  Simp- 
son, 30  Law  Times,  114 ;  s.  c.  8  El.  &  Bl.  344. 

The  admissions  of  the  corporators,  or  of  the  president,  are  not  sufficient  to 
remove  the  bar  of  the  statute  of  limitations,  in  favor  of  a  private  corporation. 
Lyman  v.  Norwich  University,  28  Vt.  560. 

»  9  Ho.  Lds.  503 ;  s.  c.  El.  Bl.  &  El.  646  ;  Id.  622 ;  7  Jur.  N.  S.  809  ;  s.  c. 
5  Jur.  N.  S.  1345 ;  4  id.  1182.  "  10  Exch.  259. 

•  661 


§  133.        UABILITY   FOR  INJURY  IN   THE  NATURE  OF  TORTS.  551 

not  competent  to  give  evidence  of  the  mode  of  using  the  same  by 
the  company  at  other  times.^ 

9.  As  a  general  rule,  in  the  English  practice,  and  in  most  of 
the  states  of  the  Union,  in  actions  for  torts,  where  the  defend- 
ant's conduct  has  been  wanton,  or  the  result  of  malice,  the  jury 
*  are  allowed  to  give  damages  of  an  exemplary  character,  and  the 
term  vindictive  even  is  sometimes  used.^  But  this  is  questioned 
by  some  writers,  and  in  many  cases.'^ 

10.  Where  a  level  crossing-  over  a  railway  is  protected  by  a 
gate,  established  by  the  company  and  tended  by  one  of  its  ser- 
vants, in  conformity  with  the  law,  those  having  occasion  to  cross 
the  track,  and  who  are  injured  by  an  attempt  to  cross  when  the 
gate-keeper  assures  them  the  line  is  clear,  may  recover  dam- 
ages of  the  company.  It  is  the  implied  duty  of  the  gate-keeper 
to  know  when  trains  arc  due,  and  to  give  correct  information  in 
that  respect,  and  not  open  a  gate  for  passage  across  the  track 
unless  he  knows  no  duly  advertised  train  is  due.  And  if  a  train 
not  advertised  to  the  gate-keeper,  or  at  a  time  not  advertised  to 
him,  is  allowed  to  pass,  whereby  injury  accrues  to  those  having 
just  occasion  to  pass  tlie  track,  it  is  the  fault  of  the  company.^ 

11.  And  where  a  railway  company  make  a  private  crossing 
over  their  track,  at  grade,  in  a  city,  and  allow  the  public  to  use 
it  as  a  highway,  and  station  a  flagman  there  to  warn  persons  of 
the  approach  of  trains,  they  will  be  held  responsible  in  damages 
to  any  one,  who  in  the  exercise  of  proper  care,  is  induced  to  cross 
by  signal  from  the  company's  flagman  that  it  is  safe,  ho  being  dam- 
aged by  collision  with  approaching  trains,  through  this  neg- 
ligence of  the  flagman .2^ 

12.  In  the  English  courts,  the  cases  in  regard  to  responsibility 
on  the  part  of  the  companies  for  injuries  at  the  crossings  of  high- 

"  Gabagan  r.  Boston  &  Lowell  Railw.,  1  Allen,  187. 

"  Sedgwick  on  Dam.  38,  98,  454 ;  ante,  §§  131,  154.  In  the  case  of  Shaw  ». 
Boston  &  Worcester  Railw.,  ante,  n.  4,  where  the  plaintifiPs  husband  was  killed, 
by  the  same  collision,  and  she  was  shown  to  have  had  a  family  of  young  children, 
and  to  be  without  sufficient  property  for  their  support,  it  was  held  to  be  error  in 
the  court  not  to  charge  the  jury,  when  specially  requested  so  to  do,  that  these 
facts  could  not  be  considered  by  them  in  estimating  damages. 

**  Appendix  to  Sedgwick  on  Dam.  609 ;  Yarillat  v.  N.  Orleans  &  Car.  Railw., 
10  Louisiana  Ann.  88. 

»  Lunt  p.  London  &  N.  W.  R.  Co.,  Law  Rep.  1 Q.  B.  277 ;  8.  c.  12  Jur.  N.  S.  409. 

*•  Sweeney  r.  Old  Colony  &  Newport  Railw.,  10  Allen,  368. 

•662 


652    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

ways  and  private  ways,  do  not  seem  always  entirely  consistent 
with  each  other,  the  rule  being  never  to  disturb  a  verdict  where  the 
damages  are  at  all  reasonable,  provided  there  was  any  proof,  al- 
though the  slightest,  of  the  omission  of  duty  on  the  part  of  the  com- 
pany's servants,  and  provided  also  that  the  plaintiff  was  not  himself 
in  fault.  In  two  recent  cases,  there  were  no  watchmen  or  gate- 
tenders  present,  at  crossings  of  public  ways  ;  and  in  both  instances 
foot-passengers  were  run  down  by  passing  trains  in  crossing.  In 
one  case,^  there  seemed  no  specific  omission  by  the  company,  and 
the  court  held  them  not  liable  ;  in  the  other  case,^  the  gates  were 
partly  open,  contrary  to  the  statutes,  and  the  court  refused  to  set 
aside  a  verdict  against  the  company. 


SECTION    VI. 


Misconduct  of  Railway  Operatives  sJioivn  by  Experts. 


1.  The  management  of  a  train  of  cars  is  so 

far  matter  of  science  and  art,  that  it  is 
proper  to  receive  the  testimony  of  experts. 

2.  In  cases  of  alleged  torts  company  not  bound 

to  exculpate. 

3.  So,  too,  the  plaintiff  is  not  bound  to  pro- 

duce testimony  f-om  experts. 


4.  The  jury  are  the  final  judges  in  such 
cases.  But  omission  to  produce  testi- 
mony of  experts  will  often  reqtdre  expla- 
nation. 

n.  6.  General  rules  of  law  in  regard  to  the 
testimony  of  experts. 


§  134.  1.  The  conduct  of  a  railway  train  is  not  strictly  matter 
of  science  perhaps.  Its  laws  are  not  so  far  defined,  and  so  ex- 
empt from  variation,  as  to  be  capable  of  perfect  knowledge,  like 
*  those  of  botany  and  geology,  and  other  similar  sciences,  or  even 
those  of  medicine  and  surgery  perhaps,  whose  laws  are  subject  to 
more  variation.^  But  they  are  nevertheless  so  far  matters  of 
skill  and  experience,  and  are  so  little  understood  by  the  com- 
munity generally,  that  the  testimony  of  inexperienced  persons 
in  regard  to  the  conduct  of  a  train,  on  a  particular  occasion,  or 
under  particular  circumstances,  would  be  worthy  of  very  little 
reliance.  They  might  doubtless  testify  in  regard  to  what  they 
saw,  and  what  appeared  to  be  the  conduct  of  the  operatives,  but 
those  skilled  in  such  matters  might,  as  experts  in  other  cases  are 

"  Stubley  ».  London  &  N.  W.  Railw.,  Law  Rep.  lExch.  13. 
"  Stapley  r.  London  B.  &  So.  Coast  Railw.,  L.  R.  1  Exch.  21. 
'  Quiinby  v.  Vermont  Central  Railw.,  23  Vt.  394,  395. 
*o53 


§  134.        MISCONDUCT   OP   OPERATIVES  SHOWN   BY  EXPERTS.  558 

allowed  to  do,  express  an  opinion  in  regard  to  the  conduct  of  the 
train,  as  shoWn  by  the  other  witnesses,  and  how  far  it  was  ac- 
cording to  the  rules  of  careful  and  prudent  management,  and 
what  more  might,  or  should  have  been  done,  consistently  with 
the  safety  of  the  train,  in  the  particular  emergency.^  But  where 
the  plaintiff,  who  claimed  damages  on  account  of  the  misconduct 
of  a  flagman  at  a  railway  crossing,  had  attempted  to  prove  that 
he  was  a  careless  and  intemperate  person,  it  was  held  that  the 
company  might  show  that  he  was  careful,  attentive,  and  temper- 
ate, and  that  these  facts  might  be  proved  by  those  who  had  seen 
his  conduct,  and  need  not  be  shown  by  experts.^ 

2.  But  a  railway  company,  when  sued  for  misconduct,  are  not 
bound,  in  the  first  instance,  ordinarily,  to  show,  by  the  testimony 
of  experts,  that  they  were  guilty  of  no  mismanagement.  But  in 
the  case  of  an  injury  to  passengers,  the  rule  is  otherwise.* 

3.  And  it  has  been  said,  that  one  who  brings  an  action  against 
a  railway,  founded  upon  negligence  and  misconduct,  is  not 
bound,  in  opening  his  case,  to  show,  that  by  the  laws  and  prac- 
tice of  railway  companies  there  was  mismanagement  in  the  par- 
ticular *  case.  If  he  sees  fit  to  trust  that  question  to  the  good 
sense  of  the  jury,  he  may.^ 

5.  But  it  is  obvious,  that  in  cases  of  this  kind,  although  the 
jury  are  ultimately  to  determine,  upon  such  light  as  they  can 
obtain,  and  will  be  governed  a  good  deal  by  general  principles 
of  reason,  based  upon  experience,  and  that  the  testimony  of  wit- 
nesses, unskilled  in  tiie  particular  craft,  will  doubtless  have  a 
considerable  influence  in  establishing  certain  remote  principles, 
by  which  all  men  must  be  governed,  in  extreme  cases,  neverthe- 
less, in  that  numerous  class  of  cases,  in  courts  of  justice,  which 
have  to  be  determined  upon  a  nice  estimate  and  balance  of  con- 
flicting testimony,  the  opinion  of  experienced  men,  in  the  par- 

•  Illinois  Central  Railw.  r.  Reedy.  17  Illinois,  680,  683.  Caion,  J.:  "The 
burden  of  proof  is  on  the  plaintifT,  and  it  is  for  him  to  show,  by  facts  and  circum- 
stances, and  by  those  acquainted  with  the  management  of  trains,  who  could 
speak  understandingly  on  the  subject,  that  it  was  practicable  and  e&ay  to  have 
avoided  the  collision,  and  that,  in  not  doing  so,  those  in  charge  of  the  train  were 
guilty  of  that  measure  of  carelessness,  or  wilful  misconduct,  which  the  law  re- 
quires to  establish  the  liability.^' 

'  Gahagan  r.  Boston  &  Lowell  Railw.,  1  Allen,  187. 

♦  Post,  §  176 ;  Galena  &  Chicago  Railw.  v.  Yarwood,  17  Illinois,  609. 
»  Quimby  r.  Vermont  Central  Railw.,  23  Vt.  394,  895. 

•654 


^54    LIABILITY  FOR  CONTRACTORS,  AGENTS,  AND  SUB-AGENTS.    CH.  XX. 

ticular  business,  must  be  of  very  controlling  influence.  And  it  is 
very  well  understood,  that  generally,  the  fact  that  such  evidence 
is  not  produced,  unless  the  omission  is  explained,  will  tend  to 
raise  a  presumption  against  the  party .^ 

®  Murray  v.  Railroad  Company,  10  Rich.  (S.  C.)  227.  As  we  find  few  cases 
in  the  books  bearing  upon  this  general  question,  in  regard  to  railways,  we  may 
refer  to  analogous  subjects  where  the  question  has  arisen.  Nautical  men  may 
testify  their  opinion,  whether,  upon  the  facts  proved  by  the  plaintiff,  the  collision 
of  two  ships  could  have  been  avoided,  by  proper  care  on  the  part  of  defendants' 
servants.  Fenwick  v.  Bell,  1  C.  «fe  K.  312.  So,  too,  in  regard  to  the  proper 
stowage  of  a  cargo.  Price  v.  Powell,  3  Comst.  322.  So  a  master,  engineer,  and 
builder  of  steamboats,  may  testify  his  opinion,  upon  the  facts  proved,  as  to  the 
manner  of  a  collision.  The  Clipper  v.  Logan,  18  Ohio,  376 ;  Sills  v.  Brown, 
9  C.  &  P.  601. 

It  has  been  held,  that  even  experts  may  not  be  called  to  express  an  opinion, 
whether  there  was  misconduct  in  the  particular  case  on  trial,  as  that  is  the 
province  of  the  jury,  but  that  they  may  express  their  opinion  upon  a  precisely 
similar  case,  hypothetically  stated,  which  seems  to  be  a  very  nice  distinction,  and 
which  is  combated  in  a  very  sensible  note  to  Fenwick  v.  Bell,  47  Eng.  Cora. 
Law  R.  312.  The  opinion  of  Lord  EUenhorough,  in  Beckwith  v.  Sydebotham, 
1  Camp.  116,  117,  that  where  there  is  a  matter  of  skill  or  science  to  be  decided, 
the  jury  may  be  assisted  by  the  opinion  of  those  peculiarly  acquainted  with  it, 
from  their  professions  and  pursuits,  seems  to  us  more  just  and  wise. 

We  have  always  regarded  the  testimony  of  experts,  as  a  sort  of  education  of 
the  jury  upon  subjects  in  regard  to  which  they  are  not  presumed  to  be  properly 
instructed.  The  distinction  we  make  upon  the  subjects,  where  we  allow  the 
testimony  of  experts,  and  where  we  do  not,  shows  this.  The  nearer  the  testi- 
mony comes  to  the  very  case  in  hand,  the  more  pertinent  and  useful.  And  the 
finesse  of  keeping  the  very  case  out  of  sight  by  name,  but  describing  it  by  *  alle- 
gory, in  asking  the  opinion  of  the  experts,  is  scarcely  equalled  by  the  device  of 
certain  species  of  birds,  who  imagine  themselves  invisible  to  others  because  they 
are  so  to  themselves.  It  is  not  unlike  asking  a  witness  in  regard  to  the  genuine- 
ness of  handwriting,  in  dispute  before  a  jury,  and  which  is  to  be  determined  by 
them,  and  this  is  always  allowed  without  question.  And  in  all  such  questions, 
there  is  likely  to  be  so  much  disagreement  among  the  experts,  as  to  leave  the 
jury  a  sufficient  duty  to  perform.  But  the  more  common  practice  is  accordin'^ 
to  the  rule  in  Sills  v.  Brown. 

In  an  action  against  a  railway  company  for  carrying  their  road  through  plain- 
tifTs  pasture,  throwing  down  his  fences,  and  scattering,  frightening,  and  injuring 
his  cattle,  it  was  held  that  an  experienced  grazier  is  competent  to  testify  as  an 
expert  in  regard  to  the  state  of  cattle  and  to  causes  affecting  their  weight  and 
health  on  a  supposed  state  of  facts.  But  that  such  person  could  not  express  an 
opinion  upon  the  facts  proved  in  the  particular  ease,  on  the  point  to  be  deter- 
mined by  the  jury.     Baltimore  &  Ohio  Railw.  v.  Thompson,  10  Md.  76. 

In  Webb  v.  Manchester  &  Leeds  Railw.,  4  Myl.  &  Cr.  116  ;  s.  c.  1  Railw.  C. 
676,  a  point  involving  questions  of  practical  science  being  in  dispute,  and  the  testi- 
mony conflicting,  it  was  referred  to  an  engineer  for  his  opinion,  and  his  conclusion, 
♦655 


§  134.        MISCONDUCT   OF   OPERATIVES  SHOWN   BY   EXPERTS.  565 

in  rco^anl  to  the  facts,  adopted  and  made  the  basis  of  the  order  of  court.  In  the  case 
of  Scaver  r.  Boston  &  Maine  Railw.  Co.,  l-l  Gray,  466,  after  several  experts  called 
by  the  plaintiff  had  testified,  upon  a  statement  of  facts  and  circumstances  of  the 
accident,  what  in  their  opinion  threw  the  cars  from  tlie  tracks,  the  defendants  were 
permitted  to  ask  a  machinist  who  had  been  connected  for  many  years  with  rail- 
ways, and  with  the  running  of  cars  and  engines  upon  them,  and  who  was  in  the 
cars  at  the  time  of  the  accident,  and  saw  the  occurrence  and  all  the  attending 
circumstances,  what  in  his  opinion  threw  the  cars  from  the  track,  and  it  was 
held  no  ground  of  exception. 

We  had  occasion,  in  our  book  on  Wills,  pt.  1,  §  15,  pp.  135-159,  to  examine 
the  subject  of  the  testimony  of  experts  upon  the  question  of  mental  soundness 
in  all  its  bearings.  Many  of  the  principles  there  laid  down,  and  especially  the 
course  of  practice,  will  apply  to  the  general  bearing  of  this  class  of  testimony 
in  other  cases. 


556 


RAILWAY   DIRECTORS. 


CH.  XXI. 


♦CHAPTER    XXI. 


RAILWAY   DIRECTORS. 


SECTION   I. 


Extent  of  the  Authority  of  Railway  Directors. 


1.  Notice  to  one  director,  if  express,  sufficient. 

2.  Applications  to  the  legislature  for  enlarged 

powers,  and  sale  of  company's  works,  re- 
quire consent  of  shareholders. 

3.  Constitutional  requisites  must  be  strictly 

followed. 

4.  Directors,  or  shareholders,  cannot  alter  the 

fundamental  business  of  the  company. 

5.  Inherent  difficulty  of  defining  the  proper 

limits  ofrailtcay  enterprise. 
n.  9.  Opinion  of  Lord  Langdale,  and  review 
of  cases  on  this  subject. 

6.  An  act  ultra  vires  can  only  be  confirmed 

by  actual  and  not  by  constructive  assent. 

7.  The  directors  of  a  trading  company  may 

give  bills  of  sale  in  security  for  dAts  con- 
tracted by  them. 


8.  Directors  cannot  bind  company  except  in 
conformity  with  charter. 

9.  Company  cannot  retain  mono/  obtained 

by  fraud  of  directors. 

10.  But  it  must  appear  the  plaintiff  vxis  mis- 

led without  his  own  fault. 

11.  Company,  by  adopting  act  of  directors, 

are  liable  to  make  recompense. 

12.  A  prospectus  and  report  should  contain 

the  whole  truth. 

13.  Directors  cannot  issue  shares  to  procure 

votes  and  control  corporation. 
14.    What  will  amount  to  fraud  in  the  reports 
of  the  company. 

15.  Directors  responsible  for  fraudulent  acts 

and  representations. 

16.  Extent  of  power  of  directors. 


§  135.  1.  We  have  before  stated,  in  general  terms,  the  power 
of  the  directors  of  the  company  to  bind  them.^  The  board  of 
directors  ordinarily  may  do  any  act,  in  the  general  range  of  its 
business,  which  the  company  can  do,  unless  restrained  by  the 
cliarter  and  by-laws.^    Notice  to  one  of  a  board  of  directors,  in 

»  Ante,  §  113;  Post,  §  164. 

'  Whitwell,  Bond  &  Co.  v.  Warner,  20  Vt.  425.  But  the  general  agent  of 
such  a  company,  who  performs  the  daily  routine  of  the  business  of  the  company, 
cannot  bind  them  beyond  the  scope  of  his  ordinary  duties.  Hence  the  law 
agent  of  a  joint-stock  insurance  company  cannot  bind  the  company  by  his  false 
representations  as  to  the  state  of  its  finances.  Bumes  v.  Pennell,  2  H.  L.  Cas., 
Clark  &  F.  (x.  8.)  497.  But  where  the  directors  of  the  company  make  such 
false  representations  as  to  the  state  of  the  finances  of  the  company  to  enhance 
the  price  of  stocks,  they  are  liable  to  an  action  at  the  suit'  of  the  person  de- 
ceived, or  to  criminal  prosecution ;  and  transfers  of  stock,  made  upon  the  faith 
of  such  representations,  will  be  set  aside  in  equity.  lb.  Lord  Campbell  said,  it 
•556 


§  135.  EXTENT   OP  THEIB  AUTHORITY.  557 

*  the  same  transaction,  or  express  notice,  is,  in  general,  notice  to 
the  company.  But  the  fact  that  one  of  a  firm  is  a  director  in  a 
banking  company,  but  takes  no  active  part  in  the  business  of  the 
bank,  is  no  notice  to  sucli  bank  of  the  dissolution  of  such  part- 
nership, or  the  retiring  of  one  of  its  partners.^ 

2.  But  it  is  said  the  directors  of  a  corporation  have  no  authority, 
without  a  vote  of  the  sliareholders,  to  apply  to  the  legislature  for 
an  enlargement  of  the  corporate  powers.*  And  it  was  held,  that 
the  managing  directors  of  a  joint-stock  company,  who  had  power 
to  lease  the  works  of  a  company,  could  not,  in  the  lease,  give  an 
optiou  to  the  lessee,  to  purchase,  or  not,  at  a  price  fixed,  the  entire 
works  of  the  company,  at  any  time  within  twenty  years,  and  that 
such  a  contract  must  be  ratified  by  every  member  of  the  company 
to  become  binding  upon  them.^ 

3.  And  where  the  deed  of  a  joint-stock  company  enables  the 
majority  to  bind  the  company,  by  a  resolution  passed  in  a  certain 
manner,  these  formalities  must  be  strictly  complied  with,  or  the 
minority  will  not  be  bound  by  the  act.* 

was  not  necessary  the  representation  should  have  been  made  personally  to  the 
plaintiff.     See,  also,  Soper  r.  Buffalo  &  Roch.  Kailw.,  19  Barb.  310. 

But  where  the  charter  of  a  railway  company,  or  the  general  laws  of  the  state, 
require  the  ratification  of  a  particular  contract,  by  a  meeting  of  the  shareholders, 
held  in  a  prescribed  manner,  such  contract,  assumed  by  the  directors  only,  does 
not  bind  the  company,  and  a  court  of  equity  will  not  hesitate  to  enjoin  its  per- 
formance by  the  company  at  the  suit  of  any  dissenting  shareholder.  Zabriskie 
V.  C.  C.  &  C.  Railw.,  10  Am.  Railw.  Times,  No.  16 ;  8.  C.  28  How.  (U.  S.)  381. 

Where  a  tariff  of  fares  of  freight  and  passengers  upon  a  railway  are  established 
and  posted  up  by  the  president  of  the  company,  and  are  acted  upon  in  transact- 
ing the  business  of  the  company  without  objection,  the  consent  of  the  corporation 
will  be  presumed.     Hilliard  v.  Goold,  34  N.  H.  230. 

'  Powles  V.  Page,  3  C.  B.  16.  Dunham  v.  Troy  Union  Railw.,  40  N.  Y. 
(3  Keyes)  643.  But  the  secretary  of  a  railway  company  cannot  bind  the  com- 
pany by  admissions.  Bell  v.  London  &  N.  W.  Railw.,  15  Beav.  648.  Nor 
can  the  directors  bind  the  company  by  their  declarations,  unless  connected 
with  their  acts,  as  part  of  the  res  gatas.  Soper  r.  Buffalo  &  Roch.  Railw.,  19 
Barb.  310.  Notice  of  process  to  two  directors  of  a  canal  company  is  good  notice 
to  the  company,  and  will  bind  it,  although  never  communicated  to  the  board. 
Boyd  r.  Chesapeake  &  Ohio  Canal  Co.,  17  Md.  195. 

*  Marlborough  Manufacturing  Co.  p.  Smith,  2  Conn.  579. 

»  CUy  t.  Rufford,  5  De  G.  &  S.  768 ;  8.  c.  19  Eng.  L.  &  Eq.  360. 

•  Ex  parte  Johnson,  31  Eng.  L.  &  Eq.  430.  One  railway  company  cannot, 
without  the  permission  of  parliament,  purchase  stock  in  other  railway  companies. 
Salomons  v.  Laing,  12  Beav.  339,  377 ;   8.  c.  6  Railw.  C.  289. 

In  the  case  of  Ernest  r.  Nichols,  6  Ho.  Lds.  401 ;  8.  c.  30  Law  Times,  46, 

•  557 


558  RAILWAY  DIRECTORS.  •  CH.  XXI. 

*  4.  So,  too,  where  the  directors,  or  even  a  majority  of  the  share- 
holders, assume  to  enter  into  a  contract,  beyond  the  legitimate 
scope  of  the  objects  and  purpose  of  tlie  incorporation,  the  contract 
is  not  binding  upon  the  company,  and  any  shareholder  may  restrain 
such  parties,  by  injunction  out  of  Chancery,  from  applying  the 
funds  of  the  company  to  such  purpose,  however  beneficial  it  may 
promise  to  become  to  the  interests  of  the  company.     This  is  a 
subject  of  vast  concern  to  the  public,  considering  the  large  amount 
of  capital  invested  in  railways,  and  the  uncontrollable  disposition 
which  seems  almost  everywhere  to  exist,  in  the  utmost  good  faith, 
no  doubt,  to  improve  the  business  of  such  companies,  by  extending 
the  lines  of  communication,  and  even  by  the  virtual  purchase  of 
other  extensive  works,  more  or  less  nearly  connected,  either  in 
fact,  or  in  apprehension,  with  the  proper  business  of  the  company. 
In  a  late  English  case  (1861),  before  the  Master  of  the  Rolls,  it 
was  held,  that  where  a  railway  company  were  required  by  their 
charter  to  keep  up  a  ferry  accommodation  between  certain  points, 
and  for  that  purpose  were  obliged  to  have  a  much  larger  number 
of  steamboats  on  certain  days, than  upon  ordinary  occasions,  they 
were  not  acting  ultra  vires  in  employing  the  steamboats  for  excur- 
sions to  a  point  beyond  the  ferry  and  back,  when  not  required  for 
the  purposes  of  the  ferry.''     The  learned  judge  thus  defined  the 
powers  of  railway  companies.     After  saying  that  if  every  share- 
holder but  one  assented,  the  company  could  not  carry  on  a  trade 
perfectly  distinct  from  that  for  *  which  they  were  constituted  ;  "  it 
is  impossible,"  said  the  Master  of  the  Rolls,  "  for  them  to  set  up 
a  brewery,  —  they  cannot  carry  on  a  trade  such  as  managing  a 
packet  company."  —  "  And  if  this  were  the  case  of  a  railway  com- 
pany embarking  in  the  formation  of  a  packet  company,  for  the 

decided  in  the  House  of  Lords,  in  August,  1867,  the  subject  of  the  power  of  the 
directors  of  a  joint-stock  company  to  bind  the  company,  is  discussed  very  much  at 
length,  and  the  conclusion  reached,  as  in  some  former  cases  (Ridley  ».  Plymouth, 
&c.  Co.,  2  Exch.  711,  and  some  others),  that  the  directors  could  execute  no  bind- 
ing contract  on  behalf  of  the  company,  except  in  strict  conformity  to  the 
deed  of  settlement  by  which  the  company  was  constituted ;  and  that  it  was  no 
excuse  for  the  other  contracting  party  to  say  he  was  ignorant  of  the  provisions 
of  .that  deed.  It  was  his  folly  to  contract  with  a  director  or  directors,  under 
such  ignorance,  and  he  must  be  content  to  look  to  those  with  whom  he  con- 
tracted. 

'  Forrest  ».  Manchester  S.  &  L.  Railw.,  30  Beav.  40 ;  7  Jur.  N.  S.  749 ;  8.  c. 
affirmed  in  Court  of  Chancery  Appeal,  id.  887,  but  upon  the  ground  that  the  suit 
was  illusory,  and  not  in  fact  the  suit  of  the  plaintiff,  but  of  a  rival  company. 
♦  558,  659 


§  135.  EXTENT   OF  THEIR  AUTHORITY.  559 

purpose  of  carrying  passengers  between  two  places,  or  even  for  the 
mere  purpose  of  making  excursions,  I  should  be  of  opinion  it  was 
not  justified.  JBut  I  am  of  opinion,  that  no  capital  of  the  company 
is  embarked  expressly  and  solely  for  the  "purpose  of  making  excur- 
sion trips." 

And  in  the  Supreme  Court  of  the  United  States  ^  it  has  been 
decided,  that  the  separate  railway  corporations  had  no  right  to 
consolidate  their  roads  into  one,  and  put  them  under  one  manage- 
ment, which  seems  to  us  a  very  questionable  proposition,  to  say 
the  least,  since  such  a  combination  of  management  is  obviously  the 
only  thing  which  will  be  adequate  to  produce  the  kind  and  degree 
of  concentration  of  effort  and  management,  in  the  carrying  forward 
of  railway  enterprises  in  this  country,  which  will  make  them  either 
remunerative  or  useful  to  the  public.  And  as  there  is  no  national 
supervision  of  these  vast  interests,  we  must  find  it  either  in  the 
discretion  of  railway  directors  and  managers,  or  in  some  new  con- 
stitutional provisions  in  the  national  government,  adequate  to  the 
exigency.  But  the  proposition  that  such  companies  cannot  estab- 
lish a  steamboat  line  in  connection  with  their  business,  and  that 
their  joint  notes  given  for  the  purchase  of  boats  cannot  be  enforced, 
is  unquestionable.^ 

5.  Tliere  can  be  no  doubt  the  courts  of  equity  hold  some  rightful 
control  over  these-  speculative  schemes  and  enterprises.  But  they 
lie  so  deeply  entrenched,  in  the  general  spirit  of  the  age,  and  re- 
ceive so  much  countenance  and  sympathy  from  kindred  enterprises, 
in  almost  all  the  departments  of  business,  that  it  often  becomes 
extremely  difficult,  if  not  impossible,  to  fix  any  well-defined  and 
practicable  limits  to  the  operations  of  railway  companies,  that  shall 
not  allow  them,  on  the  one  hand,  the  power  of  indefinite  extension, 
and  overwhelming  absorption  of  kindred  enterprises,  or  which  will 
not  be  regarded,  on  the  other,  as  a  denial  of  fair  liberty  and  free 
scope  to  carry  out  the  just  objects  of  *  their  creation.  We  have 
thought  that  we  could  not  afford  a  more  just  and  unexceptionable 
commentary  upon  tliis  difficult  and  important  subject,  than  in  the 
language  of  one  of  the  most  sober,  discreet,  and  learned  of  the 
English  equity  judges,  Lord  Langdale,  M.  R.® 

"  Pearce  e.  M.  &  L  &  P.  &  I.  Railw.,  21  How.  441.  Bat  see  Rut.  &  Bur. 
Railw.  V.  Proctor,  29  Vt.  93,  95. 

»  Colman  v.  The  Eastern  Counties  Railw.  Co.,  lOBeav.  1 ;  8.  c.  4  Railw.  C.  613. 
The  managing  directors  of  a  railway  company,  with  the  view  of  increasing  the 

•660 


560  RAILWAY  DIRECTORS.  CH.  XXI. 

*  6.  Ill  a  recent  English  case,^^  it  was  declared  by  the  Court  of 
Chancery  that  the  directors  of  the  company  were  restricted,  as  to 

traffic  on  their  line,  entered  into  a  contract  with  a  steam-packet  company,  that 
they  would  guarantee  the  proprietors  of  the  steam-packet  company  a  minimum 
dividend  of  £5  per  cent  on  their  paid-up  capital  until  the  company  should  be 
dissolved,  and  that,  upon  a  dissolution,  the  whole  paid-up  capital  should  be 
returned  to  the  shareholders  in  exchange  for  a  transfer  of  the  assets  and  proper- 
ties of  the  steam-packet  company. 

One  of  the  shareholders  filed  a  bill  on  behalf  of  himself  and  all  other  share- 
holders who  should  contribute,  except  the  directors,  against  the  company  and 
the  directors,  and  obtained  an  injunction,  ex  parte,  to  restrain  the  completion  of 
the  contract :  — 

Held,  on  motion  to  dissolve  the  injunction,  that  an  objection  for  want  of  par- 
ties to  a  suit  so  framed  was*  not  sustainable.  That  directors  have  no  right  to 
enter  into  or  to  pledge  the  funds  of  the  company  in  support  of  any  project  not 
pointed  out  by  their  act,  although  such  project  may  tend  to  increase  the  traffic 
upon  the  railway,  and  may  be  assented  to  by  the  majority  of  the  shareholders, 
and  the  object  of  such  project  may  not  be  against  public  policy.  That  acquies- 
cence by  shareholders  in  a  project  for  however  long  a  period,  affords  no  pre- 
sumption that  such  project  is  legal. 

That  an  objection  stated  by  affidavit  and  remaining  unanswered,  that  the 
plaintiff  was  proceeding  at  the  instigation  and  request  of  a  rival  company,  did 
not  deprive  him  of  his  right  to  an  injunction,  and  the  motion  to  dissolve  the 
injunction  was  refused,  with  costs. 

The  learned  judge  said :  "  To  look  upon  a  railway  company  in  the  light  of  a 
common  partnership,  and  as  subject  to  no  greater  vigilance  than  common  part- 
nerships may  be,  would,  I  think,  be  greatly  to  mistake  the  functions  which  they 
perform,  and  the  powers  of  interference  which  they  exercise  with  the  public  and 
private  rights  of  all  individuals  in  this  realm.  We  are  to  look  upon  those  powers 
as  given  to  them  in  consideration  of  a  benefit,  which,  notwithstanding  all  other 
sacrifices,  is  on  the  whole  hoped  to  be  obtained  by  the  public ;  but  the  public 
interest  being  to  protect  the  private  rights  of  all  individuals,  and  to  save  them  from 
liabilities  beyond  those  which  the  powers  given  by  the  several  acts  necessarily 
occasion,  those  private  rights  must  always  be  carefully  looked  to. 

"  I  am  clearly  of  opinion,  that  the  powers  given  by  an  act  of  parliament  like 
that  which  is  now  in  question,  extend  no  further  than  expressly  stated  in  the  act, 
except  where  they  are  necessarily  and  properly  acquired  for  the  purposes  which 
the  act  has  sanctioned.  How  far  those  powers  may  extend  which  are  necessarily 
or  conveniently  to  be  exercised  for  the  purposes  intended  by  the  act,  will  very 
oflen  be  a  subject  of  great  difficulty.  We  cannot  always  ascertain  Avhat  they 
are ;  ample  powers  are  given  for  the  purpose  of  constructing  the  railway ;  ample 
powers  are  given  for  the  purpose  of  maintaining  the  railway ;  ample  powers  are 


"*  Stanhope's  case.  Law  Rep.  1  Ch.  App.  161 ;  s.  c.  12  Jur.  N.  S.  79,  reversing 
the  decision  of  the  Master  of  the  Rolls  in  8.  c.  11  Jur.  N.  S.  872;  Lord  Bel- 
haven's  case,  3  De  G.,  J.  &  S.  41 ;  s.  c.  11  Jur.  N.  S.  572",  is  here  denied,  and 
Spackman's.case,  id.  207,  approved. 
*56i 


§  135.  EXTENT  OP  THEIR  AUTHOBITT.  661 

*  the  extent  of  their  authority  to  bind  the  members,  by  the  terms 
of  the  deed  of  settlement  or  charter,  or  fundamental  constitution 

also  given  for  the  purpose  of  doing  all  those  things  which  are  required  for  the 
proper  use  of  the  railway;  but  I  apprehend  that  it  has  nowhere  been  stated  that 
railway  companies  have  power  to  enter  into  transactions  of  all  sorts  and  to  any 
extent.  Indeed  it  is  admitted,  and  verj'  properly  adniitted,  that  they  have  not 
a  right  to  enter  into  new  trades  and  new  businesses  not  pointed  out  by  the  act ; 
but  it  is  contended  that  they  have  a  right  to  pledge  the  funds  of  the  company, 
without  any  limit,  for  the  encouragement  of  other  transactions,  however  various 
and  extensive,  provided  only  they  profess  that  the  object  of  the  liability  occa- 
sioned to  their  own  shareholders  by  such  encouragement  is  to  increase  the  traffic 
upon  the  railway,  and  thereby  the  profit  to  the  shareholders.  Surely  that  has 
nowhere  been  stated ;  there  is  no  authority  for  any  thing  of  that  kind.  What 
has  been  stated  is,  that  these  things  to  a  small  extent  have  frequently  been  done 
since  the  establishment  of  railways.  Be  it  so ;  but  unless  what  has  been  done 
can  be  proved  to  be  in  conformity  with  the  powers  given  by  the  special  acts  of 
parliament,  they  do  not,  in  my  opinion,  furnish  any  authority  whatever.  To 
suppose  that  the  acquiescence  of  railway  shareholders,  for  the  last  fifteen  years, 
in  any  transaction  conducted  by  a  railway  company,  is  any  evidence  whatever 
of  their  having  a  lawful  right  to  enter  into  it,  is,  I  think,  wholly  to  forget  the 
frenzy  in  which  the  country  has  been  for  the  last  fifteen  or  sixteen  years,  or 
thereabout.  There  is  no  project,  however  wild,  which  has  not  been  encouraged 
by  some  one  or  more  of  these  companies.  There  is  no  project,  however  wild, 
which  the  shareholders,  or  the  persons  liable  in  respect  of  those  companies, 
have  not  acquiesced  in,  from  one  cause  or  another,  either  from  cupidity  and  the 
hope  of  gaining  extraordinary  profits  beyond  their  first  anticipations,  or  from 
terror  of  entering  into  a  contest  with  persons  so  powerful.  In  the  absence  of 
legal  decisions,  I  look  upon  the  acquiescence  of  shareholders  in  these  trans- 
actions as  affording  no  ground  whatever  for  the  presumption  that  they  may  be  in 
themselves  legal." 

The  case  was  afterwards  mentioned  to  the  court,  on  behalf  of  the  defendants, 
when  his  lordship  stated,  that  the  injunction  was  only  meant  to  refer  to  the 
guaranty  proposed  to  be  given,  and  the  case  made  by  the  bill ;  but  was  not 
intended  to  affect  any  arrangement  which  the  directors  might  enter  into  with 
any  steam-packet  company  respecting  the  rates  and  tolls  to  be  charged  on  the 
railway. 

In  Salomons  r.  Laing,  the  same  learned  judge  said  (12  Beav.  339,  377 ;  s.  c. 
6  Railw.  C.  301)  :  "A  railway  company,  incorporated  by  act  of  parliament,  is 
bound  to  apply  all  the  moneys  and  property  of  the  company  for  the  purposes  di- 
rected and  provided  for  by  the  act  of  parliament,  and  not  for  any  other  purpose 
whatever.  When  the  expenses  are  paid,  and  the  public  purposes  directed  and  pro- 
vided for  by  the  act  of  parliament,  —  which,  in  truth,  was  the  motive  and  induce- 
ment for  granting  the  extraordinary  powers  given  by  all  these  acts  of  parliament,  — 
when  these  purposes  are  fully  performed,  any  surplus  which  may  remain  after  set- 
ting apart  the  sum  to  answer  contingencies,  may,  if  not  applied  in  enlarging,  im- 
proving, or  repairing  the  works,  be  divided  among  the  shareholders.  Tin;  divi- 
dends, which  belong  to  the  shareholders,  and  are  divisible  among  thcfii,  may  be 

36  •662 


562  RAILWAY   DIRECTORS.  CH.  XXI. 

*  of  the  company ;  and  that  any  arrangement  ultra  vires  of  the 
directors,  by  which,  in  consideration  of  a  money  payment  by  a 

applied  by  them  severally  as  their  own  property,  but  the  company  itself,  or  the 
directors,  or  any  number  of  the  shareholders  assembled  at  a  meeting  or  otherwise, 
have  no  right  to  dispose  of  the  shares  of  the  general  dividend,  which  belong  to 
the  particular  shareholder,  in  any  manner  contrary  to  the  will,  or  without  the  con- 
sent or  authority  of  that  particular  shareholder.  Any  application  of  or  dealing 
with  the  capital,  or  any  part  of  the  capital,  or  any  funds  or  money  of  the  com- 
pany, which  may  come  under  the  control  or  management  of  the  directors  or 
governing  body  of  the  company,  in  any  manner  not  distinctly  authorized  by  the 
act  of  parliament,  is  in  my  opinion  an  illegal  application  or  dealing ;  and  without 
meaning  to  say  that  it  is  or  could  be  practicable  for  individual  shareholders  to 
interfere  on  every  occasion,  however  small,  of  alleged  misapplication  of  par- 
ticular sums,  I  am  of  opinion  that  if,  as  in  this  case,  the  directors  are  proceeding 
upon  an  illegal  principle,  and  for  purposes  not  authorized  by  the  act  of  parlia- 
ment, to  involve  the  company,  or  the  shareholders  of  the  company,  or  any  of 
them,  in  liabilities  to  which  the  shareholders,  or  any  of  the  shareholders,  never 
consented,  relief  may  and  ought  to  be  given  in  this  court ;  and  that  the  mere  cir- 
cumstance of  the  Brighton  company  having  obtained,  as  it  is  not  disputed  they 
did  lawfully  obtain,  a  certain  number  of  shares  in  the  Portsmouth  company,  is 
not  a  reason  why  the  company  should  be  enabled  or  permitted  to  purchase  more 
shares,  and  thereby  increase  the  risks  to  which  parliament  permitted  the  share- 
holders to  be  exposed  by  the  shares  which  may  have  become  vested  in  them  by 
the  Amalgamation  Act,  or  any  reason  why  the  directors  should  be  permitted  to 
divert  so  much  of  the  funds  of  the  company  as  they  think  proper,  or  indeed  any 
portion  of  those  funds,  for  the  support  of  another  company  having  distinct  objects, 
and  meant  to  be  applied  to  purposes  different  from  those  in  consideration  of 
which  alone  those  powers  were  granted  to  them."  Ante,  §  56.  Where  the 
statute  prohibits  the  directors  of  a  company  from  being  concerned,  directly  or 
indirectly,  in  building  its  road,  a  contract  between  the  company  and  two  of  its 
directors,  for  that  purpose,  is  absolutely  void.  Barton  ».  Port  Jackson,  &c., 
Plank  Road  Co.,  17  Barb.  397. 

The  deed  of  a  joint-stock  banking  company  contained  provisions,  that  the 
directors  should  be  not  fewer  than  five  or  more  than  seven ;  that  three,  or  more, 
should  constitute  a  board,  and  be  competent  to  transact  all  ordinary  business, 
and  that  the  directors  should  have  power  to  compromise  debts.  Agents  might 
be  appointed  by  the  directors  to  accept  or  draw  bills,  without  reference  to  the 
directors.  The  number  of  directors  became  reduced  to  four,  and  three  executed 
a  deed,  compromising  a  large  debt  due  the  company,  taking  from  the  debt  or  a  min- 
ing concern,  and  covenanting  to  indemnify  him  against  certain  bills  of  exchange. 

In  an  action  on  this  covenant,  held  that  it  did  not  bind  the  company,  not  being 
ordinary  business,  and  no  number  of  directors  less  than  five  being  competent  to 
transact  it.  And  query,  whether  a  board  of  three  directors  could  transact  even 
ordinary  business,  unless  when  the  board  consisted  of  five  only.  Kirk  v.  Bell, 
16  Q.  B,  290 ;  s.  c.  12  Eng.  L.  &  Eq.  385. 

But  where  a  series  of  contracts  have  been  openly  made  by  the  officers  of  a 
corporatioh,  within  the  knowledge  of  the  corporators,  who  have  acquiesced  in 
*563 


§  135.  EXTENT  OF  THEIR  ADTHORITY.  563 

shareholder  desiring  to  retire,  they  declared  his  shares  forfeited, 
is  not,  nor  can  any  lapse  of  time  render  it,  binding  on  the  general 
body  of  the  shareholders,  unless  it  is  shown,  not  only  that  the 
latter  might  have  been,  but  also  that  they  actually  were,  fully  aware 
of  the  transaction.  This  seems  to  us  to  be  placing  the  question  of 
ratification  of  an  act  ultra  vires  upon  its  only  safe  and  salutary 
basis.  There  should  always  be  either  express  or  *  presumptive 
evidence  of  actual  and  unconstrained  acquiescence  entirely  satis- 
factory to  the  court,  in  order  to  bind  a  principal  by  any  act  of  his 
agent,  beyond  the  proper  limits  of  the  authority  delegated  to  him. 
This  is  a  principle  of  universal  acceptance  and  application  in  the 
law  of  agency. 

7.  One  of  the  latest  English  cases  "  declares,  that  the  power  of 
the  directors  to  give  a  bill  of  sale,  as  security  for  debts,  is  incident 
to  all  trading  corporations,  although  it  be  not  expressly  conferred 
by  the  articles  of  association,  or  the  constitution  of  the  company. 
Mr.  Ch.  Justice  Erie  said,  "  The  fact  that  the  company  carries  on 
a  trade  is  a  sufficient  answer  to  the  first  objection.  Every  trading 
company  must  have  the  power  of  giving  security  for  the  debts 
which  it  contracts." 

and  derived  benefit  from  them,  the  contracts  are  binding  upon  the  corporation, 
although  not  expressly  authorized  in  its  charter.  And  if  it  be  a  municipal  cor- 
poration it  is  bound  to  pay  whatever  is  due,  by  taxes,  if  it  has  no  other  means. 
Alleghany  City  v.  McClurkan,  14  Penn.  St.  81. 

So  also  where,  by  consent  of  the  board  of  directors,  a  general  agent  was  em- 
ployed in  making  contracts  for  the  purchase  of  the  right  of  way,  and  were  in 
the  habit  of  agreeing  upon  the  price,  by  submission  to  arbitrators,  and  the 
awards  had  been  paid  in  such  cases  by  the  company^s  financial  officers,  under  a 
general  resolution  to  pay  the  amount  these  agents  directed,  it  was  held  that 
such  agent,  and  another  agent  employed  to  assist  in  the  same  service,  had  power 
to  submit  the  (juestion  of  price,  in  such  cases,  to  arbitrators,  and  their  award 
was  binding  upon  the  company.  And  it  is  not  requisite  that  the  contract  of 
Submission  should  be  under  the  seal  of  the  company  in  such  case,  nor  will  it  be 
avoided  by  the  agent  attaching  a  seal  to  its  execution,  by  himself.  Wood  v.  The 
Auburn  &  Roch.  Railw.,  4  Seld.  160.  But  the  facts  that  the  directors  have  exe- 
cuted some  ten  or  twelve  similar  contracts,  and  that  such  contracts  had  been 
published  in  the  annual  reports,  and  distributed  to  the  stockholders  without  ob- 
jection, although  evidence  of  acquiescence  on  their  part  is  not  evidence  of  the 
enlargement  of  the  charter  powers  of  the  company,  so  as  to  bind  the  company, 
as  between  them  and  the  primary  parties  entering  into  the  contract  with  them. 
McLean,  J.,  in  Zabriskie  e.  C.  C  &  C.  Railw.,  10  Am.  Railway  Times,  No.  15. 
Ante,  §  56. 

"  Shears  v.  Jacobs,  Law  Rep.  1  C.  P.  513 ;  8,  c.  12  Jur.  N.  S.  Z85. 

•664 


564  RAILWAY  DIRECTORS.  CH.  XXI. 

8.  Where  power  is  given  in  the  charter  of  a  corporation  or  in 
the  deed  of  settlement,  for  the  directors  to  confirm  any  contract 
made  by  provisional  directors,  or  any  persons  acting  as  directors  of 
the  company  in  its  formation,  the  directors  alone  have  power  to 
confirm  such  contracts  by  deed.^^  But  the  directors  have  no 
power  to  make  any  contract  under  seal  binding  upon  the  corpora- 
tion, if  the  formalities  prescribed  by  its  constitution  have  not  been 
complied  with.^^ 

9.  The  directors  being  but  the  servants  or  trustees  of  the  com- 
pany, it  cannot,  as  before  stated,  retain  money  obtained  from  one 
by  the  fraudulent  sale  by  the  directors  of  the  company  property, 
unless  the  purchaser  has  by  his  own  misconduct  precluded  himself 
from  redress.^*  It  was  here  held,  that  directors  are  not  justified 
in  using  reports  to  induce  a  sale  of  property,  which  were  true  at  the 
time  they  were  made,  if  not  true  at  the  time  they  are  so  used. 

10.  But  the  last  case  was  reversed  in  the  House  of  Lords,  and 
the  decree  of  Vice-Chancellor  Stitart  ^^  affirmed  with  costs,  —  his 
*  honor  not  having  awarded  costs, —  on  the  same  grounds  mainly 
which  the  Vice-Chancellor  had  assumed  :  that  as  no  specific  rep- 
resentations had  been  made  by  the  company,  and  no  specific  in- 
quiry by  the  plaintiff,  his  case  failed  on  that  point ;  and  inasmuch 
as  he  completed  the  purchase  after  being  informed  of  the  facts  as 
to  defect  of  title,  he  could  not  complain  of  any  previous  misrep- 
resentation.i^ 

11.  But  it  was  declared  in  the  House  of  Lords,^^  that  if  reports 
are  made  to  the  stockholders  of  a  company  by  their  directors,  and 
adopted  by  them  at  one  of  their  appointed  meetings,  and  after- 
wards circulated  in  their  published  reports,  they  are  binding  upon 
the  company.  And  if  erroneous  statements  in  such  reports  can 
be  clearly  shown  to  have  been  the  proximate  and  immediate  cause 

"  Wilkins  V.  Roebuck,  4  Drew.  281. 

"  Hambro  v.  Hull  &  London  Fire  Ins.  Co.,  3  H.  &  N.  789.  See,  also,  East- 
wood V.  Bain,  id.  738;  Bryon  v.  Met.  Saloon  Omnibus  Co.,  3  De  G.  »&;  J.  123; 
Baker  ex  parte,  4  Drew.  &  Sm.  55;  8.  c.  6  Jur.  N.  S.  240. 

'*  Conybeare  v.  New  B.  &  Canada  Railw.  Co.,  1  De  G.  F.  &  J.  578;  s.  c. 
6  Jur.  N.  S.  518 ;  ante,  §  41,  pi.  2.  "  6  Jur.  N.  S.  164. 

'*  9  Ho.  Lds.  711 ;  8.  c.  8  Jur.  N.  S.  575.  See  here  Lord  Chebns/ord's  strictures 
upon  the  loose  mode  of  stating  fraud.  See  Royal  British  Bank  in  re  Mixer's  case, 
4  De  G.  &  J.  575.  See,  also,  Cullen  v.  Thompson,  4  MoQu.  424,  in  the  House 
of  Lords,  where  all  the  officers  of  a  company  participating  in  a  fraudulent  repre- 
sentation are  held  liable,  although  but  part  signed  the  report.  9  Jur.  N.  S.  85. 
♦666 


§  135.  EXTENT  OP  THEIR   AUTHORITY.  565 

of  shares  having  been  bought  from  the  company  by  any  individuals, 
a  court  of  equity  will  not  permit  the  company  to  retain  the  benefit 
of  the  contract. 

12.  But  when  a  company  issues  a  prospectus,  a  person  contract- 
ing to  take  shares  on  tiie  faith  of  it,  has  the  right  to  claim,  not 
only  that  he  shall  not  be  misled  by  any  statements  actually  false, 
but  that  he  shall  be  correctly  informed  by  it  of  all  the  facts,  the 
knowledge  of  which  might  reasonably  have  deterred  him  from 
entering  into  the  contract.'"  But  the  false  representation  of  an 
officer  is  not  that  of  the  company,  even  if  made  at  the  office.'® 
But  to  become  the  act  of  the  company  it  must  be  contained  in  a 
report  of  the  company  adopted  at  a  regular  meeting.^ 

13.  The  directors  of  a  railway  company  are  not  justified  in 
acting  on  an  old  resolution  authorizing  the  issue  of  shares,  after 
the  purpose  for  which  the  issue  was  authorized  has  ceased  to  be 
available ;  ^  nor  in  issuing  shares,  supposing  them  to  possess  the 
power,  for  the  express  purpose  of  procuring  votes  to  influence  a 
•  coming  general  meeting.'^  An  injunction  will  be  issued  to  re- 
strain such  action  of  the  directors,  it  not  being  a  question  of  the 
internal  management  of  the  company,  but  an  attempt  to  prevent 
such  management  being  legitimately  carried  on. 

14.  In  a  trial  ^  before  Martin,  B.,  where  it  appeared  that  the 
profits  of  the  company  had  been  studiously  misrepresented  by  the 
manner  of  keeping  the  books,  and  a  large  apparent  profit  on  the 
year  preceding  the  report  presented,  by  not  bringing  all  the  cost 
of  material  forward  into  the  account  of  the  year  in  which  it  was 
consumed,  it  was  held  that  any  error  in  the  mere  mode  of  keeping 
the  accounts  would  not  be  evidence  of  fraudulent  representation, 
but  the  falsification  of  facts  and  figures  was  so,  as  against  any  of 
the  officers  of  the  company  who  were  aware  of  the  issue  of  the 
prospectus,  and  had  aided  or  connived  at  the  mode  in  which  it 
was  made  up. 

"  N.  B.  &  C.  Railw.  &  Land  Co.  r.  Muggeridge,  1  Drew.  &  Sm.  363 ;  8.  c.  7 
Jar.  N.  S.  132.  '»  Royal  British  Bank  in  re,  3  L.  T.  N.  S.  843. 

»•  Fraser  r.  Whalley.  2  H.  &  M.  10. 

«»  Bale  V.  Clelland,  4  F.  &  F.  117 ;  Kisch  r.  Venezuela  Railw.  Co.,  3  De  G. 
J.  &  S.  122;  8.  c.  11  Jur.  N.  S.  646.  The  question  of  fraud  by  means  of  induc- 
ing a  shareholder  to. buy  his  shares  upon  a  misapprehension  of  the  true  condition 
of  the  company,  is  one  of  fact,  to  be  judged  of  by  the  jurj'  upon  a  consideration 
of  all  the  facts,  and  is  mainly  one  of  intent.  Cleveland  Iron  Co.  v.  Stephenson, 
2  F.  &  F.  428. 

•666 


566 


RAILWAY   DIRECTORS. 


CH.  XXI. 


15.  It  was  also  held  in  the  last  case,  that  as  the  statute  required 
the  dividend  to  be  declared  by  the  directors,  though  with  the 
sanction  of  the  shareholders,  if  to  the  knowledge  of  the  directors 
and  officers  of  the  company  such  dividend  so  declared  by  the  direc- 
tors was  paid  otherwise  than  out  of  profits,  they  are  responsible 
for  it,  and  for  the  circulation  of  any  declaration  of  it,  acted  upon 
by  innocent  shareholders. 

16.  Directors  may  ratify  any  contract  made  on  their  behalf 
which  they  have  power  to  make  themselves.^^  And  where  the 
constitution  of  the  corporation  gives  to  the  directors,  with  the 
sanction  of  an  extraordinary  meeting  of  the  shareholders,  by  a 
majority  of  two-thirds,  power  to  do  any  act  which  might  be  done 
with  the  consent  of  all  the  shareholders,  the  directors  may  lease 
the  entire  business  of  the  company  in  that  mode.^ 

♦SECTION  II. 
When  Directors  become  Personally  Liable. 


1.  Not  liable  personally,  for  any  lawful  act 

done  as  directors. 

2.  But  are  liable  upon  express  undertaking 

to  be  personally  hdden. 

3.  Are  liable  personally,  if  they  assume  to  go 

beyond  their  powers. 


Extent  of  powers  affected  often  by  usage 
and  course  of  business. 

But  if  contract  is  beyond  the  power  of  com- 
pany, or  not  in  usual  form,  directors 
personally  liable. 

Statement  of  case  illustrating  last  point. 


§  136.  1.  The  English  statute,  enacts,  what  was  the  common 
law  indeed,  that  no  director  should  become  personally  liable  by 
reason  of  any  contract  made,  or  any  act  done,  on  behalf  of  the 
company,  within  the  scope  of  the  authority  conferred  by  the 
statutes  of  the  legislature  and  the  company,  or,  as  it  is  expressed, 
"  by  reason  of  any  lawful  act  done  by  them."  Corporations  are 
not,  in  general,  responsible  for  the  unlawful  or  unauthorized  acts 
of  their  officers.^     But  the  corporation  may  be  held  responsible 

"  WUson  V.  West  Hartlepool  Harbor  &  Railway  Co.,  34  Beav.  187;  s.  c. 
2  De  G.,  J.  «&  S.  475 ;  11  Jur.  N.  S.  124. 

*•  Featherstonhaugh  v.  Porcelain  Co.,  Law  Rep.  1  Eq.  318;  s.  c.  11  Jur. 
N.  S.  994. 

'  Mitchell  r.  Rockland,  41  Me.  363.     Commissioners  to  accept  subscriptions 
for  a  corporation,  who  are  by  the  charter  required  to  give  notice  of  the  time  and 
place  of  opening  the  books,  may  give  such  notice  by  a  majority  of  their  number. 
Penobscot  Railw.  v.  White,  41  Me.  512. 
•667 


§  136.         WHEN   THEY  BECOME   PERSONALLY   RESPONSIBLE.  567 

for  the  publication  of  a  libel,  by  its  agents  and  servants  in  the 
due  course  of  the  business  of  the  company,  as  where  the  com- 
pany were  the  owners,  and  by  their  agents  managed  the  electric 
telegraph  along  their  line,  and  sent  a  despatch  to  the  effect  that 
the  plaintiff's  bank  "  had  stopped  payment,"  which  proved  not  to 
be  the  fact.  This  despatch  was  sent  for  their  own  protection,  in 
order  to  insure  their  agents  against  taking  bills  on  such  bank. 
But  the  message  went  beyond  what  was  necessary  for  that  pur- 
pose, and  thus  made  the  company  responsible  as  for  a  voluntary 
publication.  It  would  have  answered  all  purposes  to  have  directed 
their  agents  not  to  take  the  bills  without  assigning  any  reason.^ 
So,  too,  in  Philadelphia,  Wilmington,  and  Baltimore  Railway  v. 
Quigley,'  it  was  decided,  *that  a  railway  may  become  liable  for 
publishing  and  circulating  among  its  members  a  statement  of  the 
report  of  the  directors,  and  the  evidence  on  which  it  is  based,  al- 
though the  report  itself,  when  made  to  the  stockholders  in  good 
faith,  and  for  their  information  upon  matters  affecting  their  inter- 
est, would  be  regarded  as  a  privileged  communication. 

2.  But  directors  have  been  h^d  liable,  in  many  cases,  person- 
ally, where  the  debt  was  that  of  the  company,  and  where  it  so 
appeared  upon  the  face  of  the  contract.  As  upon  a  promissory 
note,  which  was  expressed,  "jointly  and  severally  we  promise  to 
pay,"  "  value  received  for  and  on  behalf  of  the  Wesleyan  News- 
paper Association.  S.  &  W.,  Directors."*  But  it  is  ordinarily 
a  question  of  intention,  whether  the  directors  are  personally 
liable  if  they  act  within  the  powers  conferred  by  the  company.* 

»  Whitfield  V.  South  Eastern  Railw.,  1  Ellis,  B.  &  Ellis,  115;  8.  c.  4  Jur.  N. 
S.  688. 

»  21  How.  (U.  S.)  202. 

*  Healey  r.  Story,  3  Exch.  3.  Alderson,  B.,  said  the  terms,  jointly  and 
severally,  imported  a  personal  undertaking,  inasmuch  as  they  could  properly 
have  no  application  to  the  company.  But  see  Roberts  r.  Button,  14  Vt.  196, 
and  the  cases  cited,  where  the  subject  is  examined  more  at  length  than  space 
will  here  allow.  Dewers  v.  Pike,  Murphy  &  Hurl.  131.  But  in  the  case  of 
Lindus  v.  Melrose,  3  H.  &  N.  177,  before  the  Court  of  Exchequer  Chamber 
(February,  1868),  it  was  held  that  a  promissory  note  expressed,  "  For  value  re- 
ceived we  jointly  promise  to  pay,"  and  signed  by  three  of  the  directors  of  a  joint- 
stock  company,  and  countersigned  by  the  secretary,  and  expressed  to  have  been 
on  account  of  stock  of  the  company,  did  not  bind  the  signers  personally,  but  im- 
ported, on  its  face,  a  contract  on  behalf  of  the  company. 

»  Tyrrell  v.  Woolley,  1  Man.  &  Gr.  809  ;  Burrell  v.  Jones,  3  B.  &  Aid.  47.  In 
a  somewhat  recent  case,  Davidson  v.  TuUoch,  3  McQu.  783 ;  8.  c.  6  Jur.  N.  S.  643, 

•668 


568  RAILWAY   DIRECTORS.  CH.  XXI. 

3.  But  where  the  directors  of  a  railway  assume  to  do  an  act 
exceeding  their  power,  as  accepting  bills  of  exchange,  which  *  does 
not  come  within  the  ordinary  business  of  railways,  they  will  be 
personally  liable.^ 

4.  But  the  business  of  railways  is  so  much  extended  in  this 
country,  as  borrowers  of  money,  carriers,  and  contractors,  in  vari- 
ous ways,  that  it  is  not  easy  to  determine,  except  from  each  par- 
ticular case,  how  far  the  directors  may  draw  or  indorse  bills,  or, 
indeed,  what  particular  acts  they  may  or  may  not  do. 

In  a  recent  case  the  question  of  the  extent  of  corporate  powers 
is  considerably  discussed,'  and  it  was  held  that  the  exercise 
of  such  powers  must  be  conferred  by  their  charters,  but  that  it  is 
the  duty  of  courts  to  give  the  charters  such  a  construction  as  to 
eflfect  the  leading  purposes  of  the  grant  where  that  can  be  done 
consistently  with  the  grant ;  and  that  business  corporations  have 
the  power  to  make  such  contracts  and  in  such  forms  as  are  re- 
quisite to  accomplish  the  purposes  of  the  grant,  having  regard  to 
any  special  limitations  contained  in  such  grants,  and  that  promis- 
sory notes  or  bills  made  or  received  by  such  corporations  are 
prima  facie  valid,  but  that  it  is  competent  to  show  that  the  trans- 
actions out  of  which  they  arise  are  not  within  the  powers  of  the 
corporation  and  thus  defeat  their  operation.     In  another  case^  it 

before  the  House  of  Lords,  it  was  determined,  that  an  action  may  be  maintained 
against  the  directors  of  a  company  in  respect  of  any  transactions  which  the  body  of 
the  shareholders  could  not  sanction,  but  in  respect  of  any  transactions  which  they 
might  sanction,  although  the  directors  might  not  have  been  justified  in  what  they 
were  doing,  there  can  be  no  right  of  action.  And  directors  are  not  liable  for  defect 
of  authority  to  make  a  conveyance  of  property,  the  sale  of  which  they  had 
negotiated,  but  the  actual  sale  being  broken  off  by  an  objection  of  the  vendee's 
solicitor,  that  the  directors  had  not  the  requisite  authority.  Wilson  r.  Miers,  10 
C.  B,  X.  S.  348.  See  also  Nowell  v.  Andover  &  R.  Railw.  Co.,  3  Gif.  112 ;  s. 
C.  7  Jur.  ^.  S.  839.  The  company  are  not  liable  to  make  good  any  loss  sus- 
tained through  the  false  representations  of  their  officers,  although  incidentally 
benefited  thereby,  unless  they  entered  into  the  scheme  for  the  purpose  of  such 
gain.     Barrj'  v.  Croskey,  2  Johns.  &  H.  1. 

•  Owen  &  Van  Uster,  10  C.  B.  318 ;  Roberts  v.  Button,  14  Vt.  195.  They 
are  in  all  cases  responsible  for  the  consequences  of  omission  of  duty,  to  the  same 
extent  as  other  trustees.     Vanguard  ».  Marshall,  Law  Rep.  6  Eq.  112. 

'  Straus  r.  Eagle  Insurance  Co.,  5  Ohio,  N.  S.  59. 

«  Hamilton  ».  Newcastle  &  Danville  Railw.,  9  Ind.  859;  M.  &  M.  Railw.  v. 
Hodge,  id.  163.     In  Massachusetts  it  was  held  that  the  only  remedy  under  the 
late  statute  for  a  corporate  debt,  against  an  officer  of  the  corporation,  was  in 
equity.     Bond  v.  Morse,  9  Allen,  471. 
*569 


§137. 


COMPENSATION   FOR  SERVICE   OP   DIRECTORS. 


669 


was  lield,  that  prima  facie  a  railway  company  had  power  to  execute 
promissory  notes  for  its  legal  indebtedness,  and  that  it  could  do 
this  only  by  its  agents ;  that  no  written  or  sealed  authority  to 
the  agent  was  requisite  r  nor  that  the  contract  should  be  under 
seal  unless  specially  so  required  by  the  charter ;  that  it  was  not 
important  to  prove  the  consideration,  as  the  law  will  make  the 
same  implications  in  favor  of  the  note  of  a  corporation  as  in  other 
cases. 

5.  By  the  construction  of  the  English  statutes,  if  a  trustee  or 
director  of  any  public  work  made  a  contract  for  any  matter  not 
provided  for  in  the  special  acts  of  the  company  or  by  the  general 
statutes,  applicable  to  the  subject,  or  in  a  ditferent  form  from 
•  that  so  provided,  he  is  taken  to  have  intended  to  become  person- 
ally responsible.* 

6.  Thus  where  a  check  on  the  company's  bankers,  for  payment 
to  a  third  party  of  the  company's  money,  was  drawn  by  three 
directors  in  the  name  of  the  company,  but  the  document  was 
signed  by  them  in  their  own  names,  and  countersigned  by  the 
secretary  of  the  company,  adding  to  his  name  "  Secretary,"  and 
a  stamp  bearing  the  name  of  the  company  was  affixed,  but  the 
three  directors  did  not  appear,  on  the  face  of  the  check,  to  be 
directors  or  to  sign  as  such,  it  was  held  that  it  did  not  purport  to 
be  the  check  of  the  company,  and  was  not  binding  on  them.^^ 

♦SECTION    III. 
Compensation  for  Service  of  Directors. 


1.  In  En^and,  directon  of  railway t  an  enti- 

tled to  comj^enaatian  for  services. 

2.  DiU  the  comp<tny  may  grant  an  annuity  to 

a  disabled  officer. 
8.   In  this  country  are  entitled  to  compensation, 
in  conformity  to  the  order  of  the  board. 


4.  Some  American  cases  follow  the  English 

rule. 

5.  Official  bonds  strictly  limited  to  term  for 

which  executed. 


§  1.37.  1.  In  England,  in  the  absence  of  contract  or  usage,  from 
which  one  might  be  inferred,  directors  of  railways  and  other  corjK)- 

»  Parrott  v.  Eyre,  10  Bing.  283;  WiUon  v.  Goodman,  4  Hare,  64,  62; 
Higgins  r.  Livingstone,  4  Dow,  P.  C.  341. 

"  SeiTfll  V.  Derbyshire,  Staffordshire  '&  Wor.  J.  Railw.,  19  Law  J.  371  ;  8. 
C.  9  C.  B.  811.  It  would  seem,  that  without  much  latitude  of  construction  this 
case  might  have  been  otherwise  ruled,  and  been  more  satisfactory. 

•670 


570  RAILWAY  DIRECTORS.  CH.  XXI. 

rations  are  not  entitled  to  compensation  for  services  as  directors. 
This  is  regarded  as  an  office,  and  so  an  honorary  service.  And  a 
resolution  of  the  board  of  directors  that  compensation  should  be 
allowed  for  certain  specified  services,  not  being  under  seal,  so  as 
to  amount  to  a  by-law,  will  not  entitle  such  director  to  sue  the 
company  for  compensation  for  such  service.^ 

*  2.  But  it  would  seem,  that  where  the  company  voted  an  an- 
nuity to  a  disabled  officer,  in  the  nature  of  a  retiring  pension,  and- 
the  directors,  by  deed,  in  the  name  of  the  company,  made  a  formal 
grant  in  conformity  with  the  vote,  that  the  contract  is  binding 
upon  the  company,  although  no  power  is  expressly  given  by  their 
charter  to  grant  annuities.^ 

3.  Railway  directors  in  this  country  are  generally  allowed 
compensation,  but  cannot  recover  it  beyond  the  rate  fixed  by  the 
general  resolutions  of  the  board. ^  And  where  a  director  acts  as 
a  member  of  the  executive  committee  of  the  board,  or  in  selling 
the  bonds  of  the  company,  his  service  is  to  be  regarded  as  in  his 
capacity  of  director,  and  the  amount  of  compensation  is  limited 
to  that  allowed  directors.^ 

'  Dunston  v.  The  Imp.  Gas  L.  Co.,  3  B.  &  Ad.  125.  But  see  Hall  v.  The 
Vt.  &  Mass.  R.,  28  Vt.  401.  The  rule  of  law  in  that  respect  is  different  in  this 
country,  a  resolution  of  the  board  of  directors  having  the  same  force,  whether 
under  seal  or  not.  Post,  §  164,  ante,  §  130.  See  also  Gaskell  v.  Chambers,  5 
Jur.  N.  S.  52 ;  8.  c.  26  Beav.  360.  In  this  case  the  directors  transferred  the 
business  of  the  company  to  another  company,  and  received  from  the  latter  a 
large  sum  for  compensation,  and  withheld  the  particulars  from  their  members. 
It  was  held  they  were  trustees  of  the  money  for  the  members,  and  the  directors 
were  ordered  to  pay  it  into  court.  But  the  directors  are  not  the  servants  of  the 
individual  shareholders,  and  therefore  such  an  one  who  feels  aggrieved  must  seek 
redress  through  the  company  for  any  misconduct  of  the  directors.  Orr  v.  Glas- 
gow, A.  &  M.  J.  R.  Co.,  3  McQu.  Ho.  Lds.  799 ;  8.  c.  6  Jur.  N.  S.  877. 

»  Clarke  v.  Imp.  G.  L.  Co.,  4  B.  «&  Ad.  315. 

'  Hodges  r.  Rut.  &  Burlington  Railw.,  29  Vt.  220.  But  where  a  director  per- 
forms services  for  the  company,  disconnected  with  his  office,  he  is  not  restricted, 
in  regard  to  compensation  by  any  resolution  of  the  board  in  regard  to  the  com- 
pensation to  be  made  the  directors.  Henry  v.  Rut.  &  Bur.  Railw.,  27 
Vt.  485.  In  another  case  it  was  held,  that  railway  directors,  as  a  general 
rule,  are  not  entitled  to  compensation  for  their  personal  services,  unless 
rendered  under  some  express  contract.  Hall  v.  Vermont  &  Mass.  Railw.,  28 
Vt.  401.  But  an  allowance  to  a  director  for  extra  services  made  by  a  board  of 
which  the  claimant  was  one,  and  his  presence  indispensable  to  constitute  a  quo- 
rum, is  void,  and  any  stockholder  may  on  behalf  of  himself  and  others,  enjoin 
the  treasurer  from  payment.  Butts  r.  Wood,  37  N.  Y.  817. 
*571 


§  138.  RECORDS   OF  THE   PROCEEDINGS  OP  DIRECTORS.  571 

4.  Some  of  the  American  states  adopt  the  English  rnle  tliat 
railway  directors  cannot  recover  compensation  for  services  ren- 
dered in  obtaining  subscriptions  to  the  capital  stock  of  the  com- 
pany, before  its  organization  ;  or  for  any  other  services,  unless  they 
are  most  unquestionably  beyond  the  range  of  their  official  duties.* 
And  it  is  here  determined  that  it  would  make  no  difference  that 
the  services  were  rendered  under  an  expectation  and  an  under- 
standing among  those  engaged  in  the  enterprise  that  the  services 
should  be  compensated  by  the  company  after  its  organization. 
And.  from  the  technical  embarrassment  of  *  holding  the  company 
bound  by  any  such  arrangements  before  its  existence,  the  policy 
of  the  law  is  wholly  opposed  to  them.*  We  think  this  by  far 
the  most  salutary  rule  upon  the  subject. 

5.  It  is  scarcely  necessary  to  state  that  official  bonds  for  faith- 
ful adii.inistration  by  officers  of  corporations  are  to  be  limited 
strictly  to  the  term  for  which  such  officer  is  elected.  And  if  the 
office  is  annual,  and  the  officer  continued  from  year  to  year,  with- 
out the  renewal  of  the  bond,  and  the  officer's  annual  account  is 
passed  from  year  to  year,  until  finally  a  defect  occur  at  a  remote 
period  from  that  covered  by  the.  bond,  there  is  no  indemnity  to  be 
obtained  under  the  bond.^ 

SECTION  IV. 
Records  of  the  Proceedings  of  Directors. 


1.  English  ttatutes  require  minutes  of  pro- 
ceedings of  directors  and  make  it  evi- 
dence. 


2.    Presumptions  in  favor  of  their  containing 

aU  that  passed. 
8.    Company  will  ratify  unauthorized  act  of 

directors  ly  acquiescence. 

§  138.  1.  The  English  general  statutes  require  the  directors  to 
keep  minutes  of  all  appointments,  contracts,  orders,  and  proceed- 
ings of  the  directors  and  committees,  in  books  kept  for  that  pur- 
pose, and  these,  duly  made,  are  receivable  as  evidence,  without 
further  authentication.  But  this  is  held  not  to  exclude  other 
evidence  of  such  transactions.^ 

*  N.  Y.  &  N.  H.  Railw.  Co.  r.  Ketchum,  27  Conn.  170;  post,  §  140. 

•  M.  &  M.  Savings  Co.  r.  O.  F.  Hall  Ass.,  48  Penn.  St.  446. 

»  Inglis  r.  The  Great  Northern  Railw.,  1  McQu.  Ho.  Lds.  1 12 ;  8.  c.  16  Eng.  L. 
&  Eq.  55.  Lord  St.  Leonards  said,  in  the  House  of  Lords :  *'  But  independently 
of  the  evidence  furnished  by  the  books,  the  due  appointment  was  proved  by  a 

•672 


572 


RAILWAY  DIRECTORS. 


CH.  XXI. 


2.  As  against  the  company  and  the  members  present  at  a  par- 
ticular meeting,  the  minutes  of  the  directors  will  be  held  prima 
facie  correct.^  And  where  the  proceedings  of  the  minutes  of  the 
meeting  are  imperfect,  it  will  be  presumed  that  every  thing  was 
brought  before  the  meeting  which  it  was  *  requisite  to  bring  before 
them  to  have  the  action  of  the  company  valid.^ 

3.  The  legality  of  the  proceedings  of  directors  in  purchasing 
shares  of  the  company  for  the  company,  which  required  the  sanc- 
tion of  a  general  meeting,  will  be  presumed  either  from  lapse  of 
time  and  no  dissent  on  the  part  of  the  shareholders,  or  from  the 
proceedings  of  the  general  meeting  at  which  the  matter  would 
naturally  have  been  acted  upon  not  being  forthcoming,  as  it  was 
the  duty  of  the  company  to  keep  regular  minutes  of  such  meeting.^ 
And  it  was  also  here  held  that  the  company,  by  transferring  such 
shares,  thereby  confirmed  the  validity  of  the  transfer  to  them.^ 
So  also  by  paying  an  annuity,  the  price  of  such  shares.^ 


SECTION  V, 


Authority  of  Directors  to  borrow  Money,  and  buy  Croods. 


Authority  of  directors  to  bind  compatof, 

express  or  implied. 
General  agent  will  bind  company  within 

scope  of  his  duties.    Directors  presumed 

to  assent  to  his  contracts. 
Contracts  under  seal  of  company  prim& 

facie  bind  them. 
4.    Strangers  must  take  notice  of  general  voant 


2. 


3 


of  authority  in  directors,  but  not  of  mere 
informalities. 
6.    Cannot  subscribe  for  stock  of  other  com^ 
panies. 

6.  May  borrow  money  if  requisite. 

7.  How  far  directors  may  bind  company  ly 

accepting  land  in  payment  of  subscrip- 
tion. 


§  139.  1.  Joint-stock  companies,  under  many  of  the  English 
statutes,^  are  held  bound  by  contracts  made  by  a  competent 
board  of  directors,  though  not  under  seal,  and  not  made  in 
strict  compliance  with  the  acts.^    But  those  who  seek  to  bind 

witness,  and  his  evidence  was  admissible  evidence,  for  the  act  confers  a  privilege, 
but  does  not  exclude  other  evidence  of  the  fact.     Miles  r.  Bough,  3  Q.  B.  845. 

•  Ex  parte  Stark,  10  Jur.  N.  S.  790. 

'  ExparU  Lane,  1  De  G.  J.  &  Sm.  504,  s.  c.  10  Jur.  N.  S.  25. 
»  7  &  8  Vict.  ch.  110. 

•  Ridley  v.  Plj-mouth  Banking  Co.,  2  Exch.  711.  Where  one  has  the  actual 
charge  and  management  of  the  business  of  a  corporation,- with  the  knowledge  of 
the  directors,  the  company  will  be  bound  by  his  contracts,  made  on  their  behalf, 
within  the  apparent  scope  of  the  business  thus  intrusted  to  him.     Goodwin  r. 

•573 


§  139.  AUTHORITY  TO   BORROW   MONEY,   ETC.  673 

•such  companies,  ou  contracts  made  with  the  directors,  must 
show  tlieir  authority  to  biud  the  company,  either  by  the  terms 
of  the  deed  of  settlement,  or  that  the  body  of  the  shareholders 
authorized  these  persons  to  act  on  their  behalf.  A  ratification 
by  a  competent  board  of  directors  will  bind  the  company .^ 

2.  The  general  rule  upon  this  subject,  in  regard  to  goods  and 
inoney  which  is  obtained  by  agents,  ostensibly  clothed  with 
competent  authority,  and  which  actually  goes  to  the  use  of  the 
company,  seems  to  be  that  the  company  is  holden.  Thus  where 
a  joint-stock  manufacturing  company,  having  a  board  of  direc- 
tors, with  authority  to  appoint  oflRcers  and  delegate  their  au- 
thority, purchased  goods  through  the  general  manager  of  the 
company,  or  his  deputy,  or  the  secretary,  all  of  whom  were  duly 
appointed,  and  when  the  goods  were  delivered  on  the  company's 
premises,  and  used  for  their  purposes,  they  were  held  liable,  ou 
the  ground  that  the  manager  had  authority  to  give  siich  orders, 
in  the  absence  of  any  express  provision  to  the  contrary.  And  it 
was  held  that,  as  to  the  other,  the  directors  must  be  taken  to 
have  known  that  the  goods  had  been  furnished  and  used,  and 
that,  therefore,  the  company  was  liable  to  pay  for  them.^ 

3.  A  contract  under  the  seal  of  the  company  is  prima  facie 
binding  upon  them.  In  such  case  it  is  not  enough,  in  order  to 
defeat  a  recovery  upon  the  contract,  to  show  an  excess  of  au- 
thority on  the  part  of  the  directors,  who  made  the  contract.^    The 

Union  Screw  Co.,  34  N.  H.  878;  Chicago,  Burlington,  &  Qiiincy  Railw.  r. 
Coleman,  18,  Illinois  297.  In  this  case  it  is  held,  the  admission  of  the  president 
of  the  company  in  regard  to  the  authority  and  acts  of  a  sub-agent  will  bind  the 
company. 

'  Smith  V.  Hull  Glass  Co.,  11  C.  B.  897.  And  where  the  general  agent 
of  a  manufacturing  company  directed  the  clerk  to  issue  a  promissory  note 
in  the  name  of  the  company,  and  it  was  shown  that  the  note  was  in  the  form 
customarily  used  by  the  company,  in  other  similar  cases,  and  which  they  had 
always  recognized,  it  was  held  to  be  sufficient  proof  of  the  execution  of  the  note 
by  the  company  to  go  to  the  jury,  and  to  warrant  them  in  finding  that  the  com- 
pany had  adopted,  by  usage,  the  signature  of  their  agent  as  their  own,  and  in- 
tended to  be  bound  by  it.  Mead  v.  Keeler,  24  Barb.  20.  Such  company  may 
borrow  money  for  its  legitimate  business,  and  bind  itself  by  a  written  obligation 
for  its  repayment.  lb.  See  also  Curtis  v.  Leavitt,  15  New  York,  9,  where  this 
subject  is  discussed. 

*  Royal  British  Bank  e.  Turquand,  6  El.  &  Bl.  248 ;  s.  c.  32  Eng.  L.  &  Eq.  273. 
Lord  Ch.  J.  Campbell  said,  in  giving  judgment :  "  A  good  plea  must  allege  facts  to 
establish  illegality,  as  was  done  in  Collins  r,  Blantem,  2  Willes,  347,  and  Paxton 
V.  Popham,  9  East,  408.    A  mere  excess  of  authority  by  the  directors,  we  think  of 

•674 


574  RAILWAY   DIRECTORS.  CH.  XXI. 

*  defence  must  establish  such  an  excess  of  authority  as  was 
known  to  the  other  party,  or  such  as  may  be  presumed  to  have 
been  so  known,  and  thus  virtually  establish  mala  fides,  both  on 
the  part  of  the  directors  and  the  other  contracting  party.* 

4.  The  case  of  Royal  British  Bank  v.  Turquand,  just  referred 
to,  was  affirmed  in  the  Exchequer  Chamber,^  in  which  a  some- 
what important  distinction  seems  to  be  made  between  a  general 
want  of  authority  in  the  directors  to  do  the  act  in  question  in 
any  case,  and  a  mere  want  of  authority  in  the  particular  in- 
stance, for  want  of  the  requisite  formalities  on  the  part  of  the 
company,  they  being  bound  in  the  latter  and  not  in  the  former 
case.  Jervis,  Ch.  J.,  in  giving  judgment  said,  "  Parties  dealing 
with  these  joint-stock  companies,  through  the  directors,  are 
bound  to  read  the  deed  or  statute  limiting  the  directors'  author- 
ity, but  they  are  not  bound  to  do  more.  The  plaintiffs,  there- 
fore, assuming  them  to  have  read  this  deed,  would  have  found, 

itself  would  not  amount  to  a  defence.  The  bond  being  under  the  seal  of  the 
company,  the  gist  of  the  defence  must  be  illegality.  If  the  directors  had  ex- 
ceeded their  authority,  to  the  prejudice  of  the  shareholders,  by  executing  the 
bond,  and  this  had  been  known  to  the  obligees,  illegality,  we  think,  would  have 
been  shown.  The  obligors  in  executing,  and  the  obligees  in  accepting  the  bond, 
might  be  considered  as  combining  together  to  injure  the  shareholders.  The  two 
parties  would  have  been  in  pari  delicto,  and  the  action  could  not  have  been  main- 
tained. In  such  circumstances  j)otior  est  conditio  defendetdis.  But  without  the 
scienter  and  without  prejudice  to  the  shareholders,  or  any  others  whatsoever,  ille- 
gality is  not  established  against  the  obligees.  If  no  illegality  is  shown  as  against 
the  party  with  whom  the  company  contract  under  the  seal  of  the  company,  ex- 
cess of  authority  is  a  matter  only  between  the  directors  and  the  shareholders." 
And  again,  "  The  plaintiffs  have  bona  fide  advanced  their  money  for  the  use  of 
the  company,  giving  credit  to  the  representations  of  the  directors  that  they  had 
authority  to  execute  the  bond,  and  the  money  which  they  advanced,  and  which 
they  now  seek  to  recover,  must  be  taken  to  have  been  applied  in  the  business  of 
the  company,  and  for  the  benefit  of  the  shareholders."  "  The  case  of  Hill  v.  Man- 
chester Waterworks  Co.,  2  B.  &  Ad.  544,  is  an  instance  of  such  a  bond  being  up- 
held, the  pleas  not  disclosing  any  fraud  or  injury  done  to  the  shareholders  of  the 
company,  and  the  case  of  Horton  v.  Westminster  Improvement  Commiss.,  7  Exch. 
911 ;  8.  C.  14  Eng.  L.  «&  Eq.  378,  was  decided  on  the  same  principle."  Agar  v. 
Atbenseum  Lile  Assurance  Co.,  3  C.  B.  N.  S.  725 ;  8.  c.  30  Law  Times,  302,  is 
decided  on  the  authority  of  R.  British  Bank  v.  Turquand,  infra,  n.  5.  A  release 
purporting  to  be  under  the  corporate  seal,  and  signed  by  the  president  of  the 
company,  and  exhibited  by  them  in  court,  as  their  act,  would  operate  as  an 
estoppel  upon  the  company,  in  any  suit  between  the  party  as  to  whom  the  release 
was  given  and  the  company.  Scaggs  v.  Baltimore  &  Wash.  Railw.,  10  Md.  268. 
»  6  El.  &  Bl.  327 ;  s.  c.  36  Eng.  L.  &  Eq.  142. 
*675 


§  139.         AUTHORITY  TO  BORROW  MONEY,  ETC.  575 

*  not  a  prohibition  to  borrow,  but  a  permission  to  borrow,  on  cer^ 
tain  things  being  done.  They  have,  in  my  opinion,  a  right  to 
infer,  that  the  company  which  put  forward  their  directors  to 
issue  a  bond  of  this  sort,  have  had  such  a  meeting,  and  such  a 
resolution  passed,  as  are  requisite  to  authorize  the  directors  in  so 
doing."  Tliis  rule  has  been  extended  to  negotiable  paper 
drawn  in  the  name  of  the  company  by  the  directors,  beyond  the 
scope  of  their  powers  to  bind  the  company,*  even  while  in  the 
hands  of  a  bona  fide  holder. 

5.  It  was  held  that  a  joint-stock  business  company  had  no 
power  to  take  stock  in  a  savings  bank,  and  that  a  loan  efifected 
by  that  means  could  only  be  enforced  to  the  extent  of  the  money 
actually  received  by  the  company  over  and  above  the  amount 
retained  upon  the  subscription.' 

6.  Th0\-e  seems  to  be  no  question  made  of  the  general  right 
of  corporations,  both  public  and  private,  to  borrow  money,  so  far 
as  their  legal  functions  may  require  it.  The  rule  has  recently 
been  extended  to  insurance  companies.^  But  it  was  once 
doubted  whether  this  could  be  done  except  under  the  corporate 
seal.^     But  the  cases  now  show  that  no   such  thing  is  requisite.^*' 

7.  It  is  made  a  question  in  a  recent  case  ^^  how  far  the  propo- 
sition by  one  to  subscribe  to  the  stock  of  the  company,  payable 
in  certain  specified  lands  at  a  given  price,  may  be  lawfully  ac- 
cepted by  the  directors  of  the  company,  and  whether  the  same 
should  not  be  made  by  a  special  agent  appointed  for  that  pur- 

•  Post,  §  239,  pi.  6. 

^  Mutual  Savings  Bank  v.  Meriden  Agency  Co.,  24  Conn.  159.  See  also 
post,  §  211,  note  3. 

»  Nelson  r.  Eaton,  26  N.  Y.  410. 

•  Wilmot  V.  Corporation  of  Coventry,  1  Younge  &  Coll.  Exchequer,  618. 

"  Marshall  c.  Queenborough,  1  Simons  &  Stu.  620.  See  cases  before  referred 
to  in  this  section.  And  it  was  held  that  the  directors  of  a  company  incorporated 
for  making  a  cemeter)-  could  not  raise  money,  by  indorsing  and  accepting  bills, 
for  the  purposes  of  the  undertaking.  Steele  v.  Manner,  14  M.  &  W.  831.  The 
same  principle  is  recognized  in  the  earlier  cases.  Broughton  r.  Manchester 
Waterworks,  3  B.  &  Aid.  1. ;  Clarke  v.  Imperial  Gas-Light  Co.,  4  B.  &  Ad.  315. 
And  where  the  by-laws  of  the  corporation  provide  that  in  the  management  of  its 
afiairs  the  directors  shall  have  all  the  powers  of  the  corporation  not  inconsistent 
with  the  by-laws  or  the  laws  of  the  commonwealth,  and  there  is  no  prohibition, 
in  the  by-laws,  of  the  directors  borrowing  money,  issuing  bonds,  or  conveying 
the  lands  of  the  company,  the  directors  may  exercise  such  powers.  Hendee  r. 
Pinkerton,  14  Allen,  381. 

"  Junction  R.  Co.  t?.  Reeve,  15  Ind.  236. 

•676 


576 


RAILWAY   DIRECTORS. 


CH.  XXI. 


pose.  But  it  was  held  clearly  tliat  the  separate  consent  of  sev- 
eral members  of  the  board,  not  shown  to  constitute  a  quorum, 
did  not  create  an  acceptance  binding  upon  the  company. 

♦SECTION  VI. 


Duty  of  Railway  Directors  to  serve  the  Interests  of  Company. 


1.  General  duty  of  such  office  defined. 

2.  Claim  for  secret  service  and  influence  with 

directors. 

3.  Opinion  of  Justice  Hoffinan  upon  the 

legality  of  such  contracts. 
n.  3.  Cases  reviewed  upon  tlie  subject  of  secret 
services. 

4.  Directors  cannot  buy  of  themselves  for  the 

company.     What  amounts  to  ratifica- 
tion. 
6.    The  point  further  illustrated.     Authority 
of  directors. 


6.  Purchase  of  shares  to  buy  peace. 

7.  Director  may  loan  money  to  company. 

8.  Director  de  facto  sufficient. 

9.  Hotel  company  may  lease  premises  to 

others.  "» 

10.  Director  cannot  recover  for  vxrk  done  for 

company. 

11.  Contract  of  projector  not  binding  on  com- 

pany. 

12.  Director  cannot  act  where  interested. 

13.  Court  will  not  act  on  petition  of  member 

who  is  a  mere  puppet  for  others. 


§  140.  1.  The  general  duty  of  railway  directors  is  stated, 
somewhat  in  detail,  in  another  part  of  this  work.^  It  is  an  im- 
portant and  public  trust,  and  whether  undertaken  for  compen- 
sation or  gratuitously,  imposes  a  duty  of  faithfulness,  diligence, 
and  truthfulness  in  the  discharge  of  its  functions,  in  proportion 
to  its  difficulty  and  responsibility. 

2.  An  important  case,  involving  incidentally  the  duty  of  rail- 
way directors,  arose  recently,  in  the  Superior  Court  of  the  city  of 
New  York.-  The  plaintiff  claimed  pay  for  labor  and  services,  in 
procuring  for  the  defendants  the  contract  for  the  construction  and 
equipment  of  the  Ohio  and  Mississippi  Railway,  from  Cincinnati 
to  St.  Louis.  The  mode  of  his  performing  this  service  seems  to 
have  been  through  one  Clement,  who  knew  nothing  of  defend- 
ants, but  who  acted  upon  the  plaintiff's  recommendation  of  them, 
and,  for  the  agreed  compensation  of  f  10,000,  secretly  influenced 
the  directors  of  the  railway,  by  personal  solicitation,  to  give  the 
contract  to  the  defendants. 

3.  Mr.  Justice  Hoffman,  in  giving  judgment,  makes  some  sug- 
gestions, upon  the  general  subject,  well  worthy  of  our  notice. 

»  §  211,  n.  6,  post. 

*  Davison  r.  Seymour  et  al.,1  Bosworth,  88 ;  Redmond'r.  Dickerson,  1  Stock- 
ton, Ch.  507. 

•677 


§  140.  MUST  SERVE  INTEREST  OP  COMPANY.  677 

"  Undoubtedly  this  was  the  employment  of  Clement,  for  a  bribe, 
*  to  use  personal  influence  with  the  directors,  to  secure  a  lucra- 
tive contract  for  one,  of  whose  capacity  and  responsibility  he 
was  entirely  ignorant.  He  was  to  use  this  secretly,  and  with 
individuals. 

"  The  directors  of  this  great  railroad  scheme,  if  they  stood  not 
in  the  capacity  of  public  officers,  owing  a  duty  to  the  state,  yet 
were  trustees  of  the  stockholders  of  the  road,  and  owed  the  best 
efibrts  of  industry,  integrity,  and  economy  to  them. 

"  No  one  can  deny,  that  a  stipulation  for  any  personal  advan- 
tage or  profit,  which  might  attend  and  influence  the  discharge 
of  their  trust  to  the  stockholders,  would  be  a  violation  of  duty ; 
and  no  engagement  given  to  them,  or  contracts  made  with  them, 
for  that  object,  could  bear  the  scrutiny  of  the  law. 

"  If,  again,  one  of  their  officers,  if  Mitchell,  for  example,  em- 
powered to  negotiate  and  finally  to  settle  the  contract  with  Sey- 
mour, had  received  an  obligation  for  the  payment  of  a  sum  of 
money  for  his  services,  it  could  never  have  been  enforced."  The 
learned  justice  cited  and  commented  upon  the  following  cases 
in  support  of  the  principle  which  would  avoid  such  agreements  ;  * 

'  Gray  v.  Hook,  4  Comst.  449 ;  Waldo  c.  Martin,  4  Bam.  &  Cress.  319 ;  s.  c. 
2  Can-.  &  Payne,  1 ;  Harrington  p.  du  Chastel,  2  Swanston,  167 ;  Hopkins  v. 
Prescott,  4  Com.  Ben.  678;  Money  r.  Madeod,  2  Simons  &  Stuart,  801; 
Marshall  p.  Baltimore  and  Ohio  Railroad  Co.,  16  Howard  (U.  S.),  314,  325; 
FuUer  p.  Dame,  18  Pick.  472. 

Lord  Chancellor  Eldon  says,  in  regard  to  one  acting  as  the  agent  of  others, 
and  who  secured  a  large  sum  to  himself,  without  the  knowledge  of  those  on 
whose  behalf  he  acted,  "It  is  impossible  for  this  court  to  sanction  such  a  pro- 
ceeding.'"    Fawcett  p.  Whitehouse,  1  Russ.  &  M,  132. 

Mr.  Shelford,  the  learned  author  of  the  Treatise  on  Railways,  thus  lays  down 
the  rule,  in  regard  to  the  duty  of  the  directors  of  a  railway  company,  pp.  193, 
194.  "  The  employment  of  a  director  is  of  a  mixed  nature,  partaking  of  the 
nature  of  a  public  office.  ...  If  some  directors  are  guilty  of  a  gross  non-attend- 
ance, and  leave  the  management  entirely  to  others,  they  may  be  guilty,  by  these 
means,  of  the  breaches  of  trust  which  are  committed  by  others.  By  accepting 
a  trust  of  this  sort,  persons  are  obliged  to  execute  it  with  fidelity  and  reasonable 
diligence,  and  it  is  no  excuse  that  they  had  no  benefit  from  it,  and  that  it  was 
merely  honorary.  .  .  .  Supine  and  gross  negligences  of  duty  will  amount  to  a 
breach  of  trust.''^  Charitable  Corporation  p.  Sutton,  2  Atk.  400.  The  same 
principle,  in  regard  to  the  effect  of  the  service  being  gratuitous,  is  found  in  the 
celebrated  case  of  Coggs  p.  Bernard,  1  Salk  26.  In  Marshall  v.  Baltimore  and 
Ohio  Railw.,  supra,  Mr.  Justice  Grier  made  some  verj'  pertinent  remarks,  in 
regard  to  the  duty  of  courts  of  justice,  in  enforcing  against  railway  companies 

87  •  678 


578  BAILWAY  DIRECTORS.  CH.  XXI. 

*  and  continued  :  "  I  am  led  to  the  conclusion,  that  it  would  be 
imposible  to  allow  Clement  to  sustain  an  action  upon  the  *  agree- 

contracts  for  obtaining  legislative  grants,  by  extraordinary  efforts  and  influences, 
secretly  exercised.  This  was  an  action  to  recover  $50,000  for  secret  service,  in 
getting  a  bill  through  the  legislature  of  Virginia,  giving  the  company  the  right 
to  carry  their  road  through  the  state.  The  learned  judge  said:  "All  persons 
whose  interests  may  in  any  way  be  affected  by  any  public  or  private  act  of  the 
legislature,  have  an  undoubted  right  to  urge  their  claims  and  arguments,  either 
in  person  or  by  counsel  professing  to  act  for  them,  before  legislative  committees, 
as  well  as  in  courts  of  justice.  But  where  persons  act  as  counsel  or  agents,  or  in 
any  representative  capacity,  it  is  due  to  those  before  whom  they  plead  or  solicit, 
that  they  should  honestly  appear  in  their  true  characters  so  that  their  arguments 
and  representations,  openly  and  candidly  made,  may  receive  their  just  weight 
and  consideration.  A  hired  advocate  or  agent,  assuming  to  act  in  a  different 
character  is  practising  deceit  on  the  legislature.  Advice  or  information  flowing 
from  the  unbiased  judgment  of  disinterested  persons,  will  naturally  be  received 
with  more  confidence  and  be  less  scrupulously  examined  than  where  the  recom- 
mendations are  known  to  be  the  result  of  pecuniary  interest,  or  the  arguments 
prompted  and  pressed  by  hope  of  a  large  contingent  reward,  and  the  agent 
'  stimulated  to  active  partisanship  by  the  strong  lure  of  high  profit.'  Any 
attempts  to  deceive  persons  intrusted  with  the  high  functions  of  legislation,  by 
secret  combinations,  or  to  create  or  bring  into  operation  undue  influences  of  any 
kind,  have  all  the  injurious  effects  of  a  direct  fraud  on  the  public. 

"Legislators  should  act  with  a  single  eye  to  the  true  interest  of  the  whole 
people,  and  courts  of  justice  can  give  no  countenance  to  the  use  of  means,  which 
may  subject  them  to  be  misled  by  the  pertinacious  importunity  and  indirect 
influences  of  interested  and  unscrupulous  agents  or  solicitors. 

"  Influences  secretly  urged  under  false  and  covert  pretences  must  necessarily 
operate  deleteriously  on  legislative  action,  whether  it  be  employed  to  obtain  the 
passage  of  private  or  public  acts.  Bribes,  in  the  shape  of  high  contingent  com- 
pensation, must  necessarily  lead  to  the  use  of  improper  means  and  the  exercise 
of  undue  influence.  Their  necessary  consequence  is  the  demoralization  of  the 
agent  who  covenants  for  them ;  he  is  soon  brought  to  believe  that  any  means 
which  will  produce  so  beneficial  a  result  to  himself  are  '  proper  means,'  and  that 
a  share  of  these  profits  may  have  the  same  effect  of  quickening  the  perceptions 
and  warming  the  zeal  of  influential  or  '  careless '  members  in  favor  of  his  bill. 
The  use  of  such  means  and  such  agents  will  have  the  effect  to  subject  the  state 
governments  to  the  combined  capital  of  wealthy  corporations,  and  produce  uni- 
versal corruption,  commencing  with  the  representative  and  ending  with  the 
elector.  Speculators  in  legislation,  public  and  private,  a  compact  corps  of 
venal  solicitors,  vending  their  secret  influences,  will  infest  the  capital  of  the 
Union,  and  of  every  state,  till  corruption  shall  become  the  normal  condition  of 
the  body  politic,  and  it  will  be  said  of  us  as  of  Rome,  —  *  omne  Rovkb  venule.'' " 

The  following  cases  take  a  similar  view.     Wood  v.  McCann,  6  Dana,  366 ; 

Hunt».  Test,  8  Alab.  713;  Harris  v.  Roof,   10  Barb.  4^9;  Rose  v.  Truax,  21 

Barb.  361.     The  enormity  of  such  transactions,  in  some  quarters,  if  universal 

and  concurrent  general  opinion  may  be  regarded  as  authentic,  is  truly  appalling 

•  679,  680 


§  140.  MUST   SERVE  INTEREST  OP  COMPANY.  679 

ment  with  him.  There  was  in  it  most  of  the  elements  of  a 
vicious  contract,  which  have  avoided  similar  obligations  in  the 

to  any  just  sentiment  of  confidence  in  official  fairness,  and  responsible  relation 
to  public  trusts.  It  is  probable  that  the  virus  of  the  disease  lies  deeper  in  the 
fountains  of  the  common  moral  sentiment  than  we  have  generally  supposed. 
We  feel  no  disposition  to  join  in  a  general  outcry  upon  the  subject.  For  we  do 
not  believe,  as  a  general  thing,  that  such  evils  are  likely  to  be  cured  by  any 
formal  criticisms,  either  in  the  abstract  or  in  particular  cases,  whether  it  come 
from  the  bench  or  tlie  press.  The  difficulty  is  one  which,  for  its  cure,  demands 
sterner  remedies.  The  perpetrators  of  such  enormities  are  quite  too  apt  to  con- 
sider, that  because  they  have  been  made  the  victims  of  some  severe  strictures, 
in  high  places  perhaps,  they  have  expiated  their  guilt,  and  perhaps  earned  an 
indulgence  for  the  future ;  and  so  rush  at  once  into  a  deeper  chasm  of  iniquity, 
just  as  soon  as  another  tempting  occasion  presents.  And  it  is  not  uncommon, 
that  the  administrators  of  the  law,  even  in  such  cases,  after  having  administered 
a  somewhat  scathing  rebuke  to  the  perpetrators  of  such  crimes,  begin  to  feel 
compunctious  visitings,  and  terminate  the  drama,  which  was  introduced  with 
such  a  high-sounding  announcement,  by  the  infliction  of  a  most  insignificant 
penalty,  which  renders  both  the  law  and  its  ministers  more  or  less  objects  of 
contempt. 

The  true  method  undoubtedly,  in  such  cases,  if  we  desire  to  make  the  law, 
as  it  should  be,  a  just  and  unaffected  terror  to  evil-doers,  is  to  say  little,  but  do 
justice.  Let  the  judgments  of  the  courts,  rather  than  the  comments  of  the 
judges,  testify  to  the  sense  of  abhorrence  of  such  crimes.  These  philippics  from 
the  bench  generally  are  very  justly  regarded,  not  only  by  the  people  at  large, 
but  by  the  culprits  themselves,  as  a  kind  of  apology  for  the  sentence,  and  thus 
destroy  half  its  good  effect.  And  if  the  other  half  is  deducted  by  the  judge,  on 
account  of  the  plainness  and  the  honesty  of  the  rebuke  which  he  has  already 
administered  to  the  offender,  very  little  remains. 

But  the  exposition  of  the  subject,  in  an  important  case  in  the  city  of  New 
York,  is  so  instructive,  that  we  venture  to  repeat  it  here.  In  re  Robert  TV. 
Lowber  r.  The  Mayor,  Aldermen,  and  Commonalty  of  the  city  of  New  York  ; 
and  In  re  A.  C.  Flagg,  Comptroller,  and  others,  tax-payers  p.  Lowber.  The 
gist  of  these  cross-actions  is,  that  by  collusion  with  certain  of  the  city  authorities, 
Lowber  was  to  receive  $200,000  for  a  piece  of  land  for  a  market  on  the  East 
River.  The  arrangement  was  made  by  consenting  to  a  judgment  of  court  on 
the  report  of  a  referee.  Comptroller  Flagg,  upon  hearing  of  this  judgment,  took 
measures  for  obtaining  a  stay  of  proceedings.  In  giving  judgment  on  this 
motion,  lioosevelt,  J.,  said :  — 

"  The  decision  of  the  general  term  of  the  superior  court,  it  may  be  said,  was 
not  pronounced,  and  of  course  was  not  known  till  some  months  after  tiie  title  in 
this  case  was  passed,  and  even  some  weeks  after  the  judgment  in  the  present 
action  was  entered.  But  the  fact,  while  it  affords  matter  of  vindication  to  the 
corporation  counsel,  is  at  the  same  time,  of  itself,  a  sufficient  reason,  under  the 
circumstances,  for  opening  the  judgment,  —  a  reason,  as  it  seems  to  me,  not  only 
sufficient,  but  controlling,  leaving  in  any  just  view  of  the  subject  no  alterna- 
tive.    To  say  that  the  citizens,  in  such  a  case,  are  to  hazard  more  than  a  half 


680  RAILWAY  DIRECTORS.  CH.  XXI. 

*  leading  cases  cited.  There  was  secrecy,  individual  application, 
a  concealed  promise  of  compensation,  and  utter  ignorance  and 

million  of  dollars,  the  probable  cost  of  land  and  market,  and  that  there  is  no 
relief,  would  be  monstrous.  The  proposition  shocks  all  our  notions  of  law  and 
judicial  proceedings,  and  especially  when  broached  in  a  court  having,  by  the 
constitution,  general  jurisdiction  in  law  and  equity." 

"  *  As  matter  of  law'  (says  the  counsel  of  the  city  in  his  second  point),  '  I 
deny  that  the  corporation  can  be  ordered  by  this,  or  any  court,  to  defend  a 
suit.'  The  counsel  seems  to  forget  that  if  the  corporation  (by  which  he  means 
the  aldermen  and  other  officers  of  the  corporation)  cannot  be  ordered  to  defen* 
a  suit,  the  corporators  may  be  permitted  to  do  it  for  them ;  and  that  if  the  court 
cannot  compel  the  corporation  to  resist  an  unjust  claim,  it  can  refuse  to  permit 
its  records  to  be  used  as  the  machinery  for  enforcing  it. 

"  If  this  were  not  so,  of  what  avail  would  be  the  legislative  restrictions  on  the 
power  of  contracting  debts  and  on  the  power  of  exercising  extensive  functions  ? 
All  the  property  of  the  city,  and  all  its  revenues,  past,  present,  and  prospective, 
from  taxation  or  otherwise,  might  be  disposed  of  without  appeal,  by  a  single  act 
of  mortgage  or  conveyance,  clothed  in  the  form  of  a  concerted  judgment  —  a 
judgment,  at  the  most,  nominally  defended,  but  really  confessed  —  and  of  which, 
as  in  this  case,  the  court  itself,  without  its  knowledge,  might  be  made  to  figure 
as  the  innocent  author. 

"  As  matter  of  law,  I  deny  that  the  court  can  be  made,  and  thus  in  effect 

*  ordered,'  by  the  boards  of  direction,  by  whatever  name  called,  of  this  or  any 
corporation,  thus  to  lend  its  aid  to  violate  the  law  and  ruin  the  corporators. 
Nor  it  is  true  either,  that  the  corporation  counsel,  in  the  defence  of  suits  in  this 
court,  brought  against  the  city,  is  subject  to  the  absolute  orders  of  the  two 
boards,  and  '  only  responsible '  to  them.  Although,  in  the  loose  language  of 
ordinary  discourse,  the  aldermen  and  assistant  aldermen  are  commonly  called 

*  the  corporation,'  they  are  in  fact  only  its  legislative,  as  distinguished  from  its 
executive,  organs.  The  corporation  of  the  city,  as  we  have  seen,  consists  of  the 
whole  body  of  the  citizens.  The  citizens  are  the  quasi  stockholders.  The  '  charter 
officers,'  whether  legislative  or  executive,  including  the  '  head  of  the  law  depart- 
ment,' are  merely  the  agents  and  trustees  of  the  citizens,  and  all  ultimately 
responsible  to  them.  It  is  an  error  on  the  part  of  the  corporation  counsel  to 
assume,  as  he  does  in  his  third  point,  that  he  is  '  responsible  only  to  his  client,' 
and  that  the  client  is  the  common  council,  as  distinguished  from  the  '  com- 
monalty.' His  office  is  the  direct  gift  of  the  people,  made  elective  for  the 
express  purpose  of  putting  an  end  to  the  subserviency  previously  supposed  to 
exist,  and  of  creating  a  check  or  counterpoise  in  its  stead.  Nor  is  this  all ;  the 
corporation  counsel,  when  conducting  the  prosecution  or  defence  of  a  suit  in 
court,  is  an  officer  of  the  court,  and  as  such,  and  like  any  other  attorney  in  like 
case,  responsible  to  the  court.  Although  subject,  within  certain  limits,  to  the 
legally  authorized  resolutions  of  the  common  council,  when  acting  in  his  general 
character  of  '  counsel  to  the  corporation,'  when  acting  as  an  attorney  of  the 
court. he  is  subject  to  the  rules  and  regulations  of  the  court,  and  with  this  in- 
timation will,  I  have  no  doubt,  be  '  perfectly  prepared  [see  his  communication] 

*581 


§  140.  MUST  SERVE   INTEREST   OP   COMPANY.  581 

*  recklessness  as  to  the  competency  of  the  party  whose  cause  he 
was  promoting,  and  whose  reward  he  was  to  receive.  There  is 
the  difference,  that  these  directors  were  servants  of  an  organi- 
zation inferior  to  that  of  a  stat«,  yet  acting  in  a  very  spacious 
sphere,  and  representing  an  extensive  body  of  constituents.  The 
difference  between  their  position  and  that  of  legislators,  upon  a 
question  like  this,  appears  to  me  but  shadowy. 

"  If,  then,  the  claim  of  Clement  would  be  promptly  rejected, 
does  the  present  plaintiff  stand  in  a  better  position  ?  His  original 
employment  might  have  been  consistent  with  an  open,  avowed 
agency,  an  intent  or  instructions  to  make  it  known,  and  thus  be 
free  from  all  objections.  But  we  are  left  in  ignorance  of  what  the 
terms  of  such  original  agreement  were,  —  how  far  they  extended. 
All  is  indefinite,  except  merely  an  employment.  He  engages 
Clement,  and  here  again,  that  employment  may  have  been  perfectly 
free  from  censure  on  the  plaintiff's  part.  But  upon  the  best  con- 
sideration we  can  give,  we  cannot  separate  the  act  of  Clement  from 
the  acts  of  the  plaintiff.  There  is  a  legal  identity  for  the  purposes 
of  this  action.  The  plaintiff  must  be  held  to  have  employed  Clem- 
ent to  do  what  he  did  do,  or  to  have  been  bound  to  superintend 
his  proceedings,  and  free  them  from  what  was  illegal.  It  is  impos- 
sible to  permit  him  to  profit  by  the  misdeeds  of  his  own  agents, 
however  ignorant  and  exempt  from  *  them  himself.  His  igno- 
rance, when  knowledge  was  a  duty,  becomes  equivalent  to  a  fault." 

4.  The  directors  of  a  corporation,  created  for  business  purposes 
and  profit,  are  trustees  for  the  shareholders,  and  owe  them  all  the 
duties  and  responsibilities  which  attach  to  other  trustees  and 
agents.  If,  therefore,  a  director  enter  into  a  contract  for  the 
company,  he  can  derive  no  personal  benefit  from  it.*    Accordingly, 

to  perform  any  duty  which  such  a  result,  or  the  office  he  holds,  may  devolve 
upon  him.' 

"An  order  will,  therefore,  be  entered  (first  submitting  a  drafl  to  the  court  for 
settlement),  directing  that  the  judgment  and  execution  be  set  aside,  as  also  the 
answer,  reference,  and  report ;  and  that  a  new  answer,  to  be  prepared  by  the 
counsel  to  the  corporation,  and  approved  by  the  comptroller,  be  fded  and  served 
in  twenty  days  from  the  date  of  this  order,  unless  the  comptroller,  within  the 
said  twenty  days,  should  elect,  as  he  may,  oflicially,  and  as  a  tax -payer  and  cor- 
porator, on  behalf  of  himself  and  others,  to  file  an  original  bill  of  complaint, 
setting  forth  such  matters  and  making  such  parties,  and  praying  such  relief  in  the 
premises,  as  he  may  be  advised.^ 

See  also  Semmes  c.  Mayor,  &c.  of  Columbus,  19  Ga.  471.     Ante,  §  176. 

*  Great  Luxembourg  liailw.  r.  Magnay,  25  Beavan,  686 ;  s.  c.  4  Jur.  N.  S.  839. 

•  682,  683 


582  RAILWAY   OraECTORS.  CH.  XXI. 

where  the  company  had  furnished  the  director  with  a  large  sum  of 
money,  to  enable  him  to  purchase  the  concession  of  another  com- 
pany in  regard  to  their  line,  and  he  purchased  it,  as  it  turned  out, 
of  himself,  being  the  concealed  owner  of  it,  it  was  held  that  the 
transaction  could  not  stand,  but  the  company  must  adopt  or 
repudiate  it  altogether.  But  the  company  having  sold  the  conces- 
sion during  the  pendency  of  a  suit  impeaching  the  transaction,  it 
was  held  they  could  have  no  relief,  either  as  to  the  application  of 
the  money  or  otherwise.^  ^ 

5.  And  where  the  directors  of  an  insurance  company  had  pur- 
chased the  stock  of  one  of  the  board,  and  allowed  him  to  retire 
from  his  position  both  as  director  and  shareholder,  and  had  used 
the  funds  of  the  company  to  compensate  him  for  his  shares,  it  was 
held  that  this  was  such  an  irregularity  as  could  not  be  confirmed 
and  legalized  by  a  meeting  of  the  shareholders  even,  unless  the 
deed  of  settlement  under  which  the  company  was  formed  provided 
for  its  being  so  ratified,  or  for  its  transaction  by  the  directors.® 
And  it  was  held,  that  in  such  case  a  bill  in  equity,  filed  by  certain 
shareholders  on  behalf  of  themselves  and  the  others  against  the 
company  and  the  directors,  praying  that  the  directors  might  be 
decreed  to  restore  to  the  company  the  funds  so  diverted  by  them, 
was  maintainable.® 

6.  It  seems  to  be  regarded  as  a  valid  contract  between  the 
different  directors  of  a  corporation,  by  which  one  portion  purchase 
the  interest  of  another  portion,  to  enable  them  to  retire  with  a 
view  to  heal  dissensions  in  the  board ;  and  the  fact  that  the  money 
is  paid  by  the  company's  bankers  and  refunded  by  a  *  resale  of  the 
shares  thus  purchased,  will  not  render  the  contract  invalid." 

7.  But  where  by  a  constitutional  provision  of  a  corporation  the 
director's  office  was  vacated,  if  he  participated  in  the  profits  of  any 
contract  with  the  company,  but  the  company  were  empowered  to 
borrow  money  on  the  director's  own  individual  responsibility,  or 
on  other  securities,  it  was  held  that  a  director,  lending  his  own 
money  to  the  company  at  a  large  interest,  was  not  thereby  disqual- 
ified from  being  a  director.® 

•  See  also  Sturges  r.  Enapp,  31  Yt.  1. 

•  ,Hodgkinson  c.  National  Live  Stock  Ins.  Co.,  5  Jur.  N.  S.  478,  969 ;  s.  c. 
26  Beav.  473. 

'  Haddon  r.  Ayers,  1  Ellis  &  Ellis,  118, ;  8.  c.  5  Jur.  N.  S.  408. 

•  Bluck  V.  Mullalue,  6  Jur.  N.  S.  1018;  s.  c.  27  Beav.  898. 

*584 


§  140.  MUST  SERVE   INTEREST  OP   COMPANY.  583 

8.  A  director  who  acts  as  such  by  sitting  at  the  board  and 
executing  works  for  the  company,  will  be  treated  as  such  so  far 
as  his  claim  against  the  company  is  concerned,  although  he  was 
not  properly  appointed.^ 

9.  It  is  not  ultra  vires  for  a  hotel  company  to  lease  part  of  their 
premises  to  a  business  company,  with  the  condition  that  the  first 
company  shall  have  the  exclusive  privilege  of  supplyhig  the  por- 
tion so  leased  with  all  provisions,  wines,  and  liquors.*^ 

10.  Under  the  English  statute  "  it  is  an  answer  to  a  claim  for 

compensation  for  works  of  the  company  executed  by  the  plaintiff, 

that  he  was  at  the  time  of  entering  into  the  contract  interested 

therein,  and   it  makes  no  difference  that  the  consideration  was 

executed,   and    the   company   had   had   the  benefit  of  the  con- 
tract. ^2 

11.  A  contract  made  between  the  projector  of  a  corporation  and 
the  directors  of  the  company  thereafter  created,  which  is  not  in 
terms  made  conditional  on  the  completion  of  the  company,  is  not 
under  the  English  statute  binding  upon  the  company  when  fully 
established. ^3 

12.  A  rule  of  the  constitution  of  the  company,  whereby  a  direc- 
tor is  prohibited  from  voting  upon  any  matter  in  which  he  is  inter- 
ested, will  not  preclude  him  from  voting  as  a  shareholder  at  *  a 
general  meeting.^*  But  the  resolution  of  a  board  of  directors,  of 
which  the  creditor  is  a  member,  acknowledging  the  existence  of  a 
debt  barred  by  the  statute  of  limitations,  will  not  operate  to  remove 

*  South  Essex  Gas  Light  &  Ck)ke  Co.,  in  re,  20  L.  J.  Ch.  43. 

w  Simpson  r.  Westminster  Palace  Hotel  Co.,  6  Jur.  N.  S.  985;  8,  c.  2  De 
G.  F.  &  J.  141 ;  8.  c.  8  Ho.  Lds.  Cas.  712.  But  where  the  promoters  of  a  rail- 
way contracted  with  a  land-owner,  a  peer  in  parliament,  to  pay  him  £20,000, 
for  his  countenance  and  support  in  obtaining  their  act,  independent  of  and  above 
all  ordinary  compensation  for  land  and  other  damages,  another  separate  contract 
defining  the  land  to  be  taken  and  the  amount  to  be  paid  therefor,  the  directors 
of  the  company  after  its  organization  having  ratified  the  first  contract,  it  was 
held  tliat  the  original  agreement  and  the  ratification  by  the  directors  were  ultra 
vires  of  the  company,  and  could  not  be  enforced  against  it.  Earl  of  Shrewsbury 
V.  North  StoSbrdshire  Railw.  Law.  Rep.,  1  £q.  698. 

»'  7  &  8  Vic.  c.  110,  §  29. 

"  Stears  r.  South  Essex  Gas  Light  &  Coke  Co.,  9  C.  B.  N.  S.  180 ;  s.  c.  7 
Jur.  N.  S.  447.     See  also  Walker  ex  paHe,  8  De  G.  M.  &  G.  607. 

"  Gunn  r.  London  &  Lancashire  Ass.  Co.,  12  C.  B.  N.  S.  694. 

'*  Lead  Mining  Co.  v.  Merryweather,  10  Jur.  N.  S.  1281 ;  s.  c.  2  H.  &  M. 
254. 

•686 


684 


RAILWAY  DIRECTORS. 


CH.  XXI. 


such  bar,  if  indeed  any  resolution  of  the  board  will  bind  the  com- 
pany to  that  extent.^^ 

18.  Although  it  is  the  unquestionable  right  of  every  member  of 
the  company  to  restrain  the  unlawful  acts  of  the  directors,  still 
when  it  appears  that  the  plaintiff  is  a  mere  puppet  in  the  hands  of 
others  not  members  of  the  company,  who  indemnify  him  against 
the  costs  of  •  the  suit,  the  court  will  not  interfere  by  interlocutory^ 
injunction.^^ 

SECTION   VII. 

Right  to  dismiss  Employees.  —  Rule  of  Damages,  when  done 
wrongfully. 


Some  cases  hold,  that  if  icrongfully  dis- 
missed may  recover  salary. 

English  courts  do  not  favor  this  view. 
Case  stated  by  English  judges. 

The  American  cases  have  sometimes  taken 
the  same  view. 


4.  Where  the  contract  provides  for  a  term  of 
wages,  after  dismissal,  it  is  to  be  re- 
garded as  liquidated  damages. 

6.  Statute  remedy,  in  favor  of  laborers  of 
contractors,  extends  to  laborers  of  sub- 
contractors. 


§  141.  1.  Where  a  railway  company  dismiss  a  servant,  superin- 
tendent, or  other  employee,  without  just  cause,  it  seems  to  be  con- 
sidered, in  some  cases,  that  they  are  prima  facie  liable  for  the 
salary,  for  the  full  term  of  the  employment.^  This  proposition  has 
been  often  made  by  judges,  and  seems  to  have  been  acquiesced  in, 
by  the  profession,  to  a  very  great  extent,  but  in  a  late  English 
case,^  where  the  subject  is  examined  with  great  *  thoroughness,  the 
opinion  of  the  judges  certainly  seems  to  incline  to  a  dififerent  result. 
Patteson,  J.,  said :  — 

2.  "  I  am  not  aware  that  this  precise  point  has  been  raised  in 

"  Gold  Mining  Co.,  ex  parte,  10  L.  T.  N.  S.  229. 

"  Filder  v.  L.  Brighton  &  South  Coast  Railw.  Co.,  1  H.  &  M.  489. 

*  Costigan  v.  The  Mohawk  &  Hudson  Railw.,  2  Denio,  609. 

*  Goodman  v.  Pocock,  15  Q.  B.  576.  This  is  the  case  where  a  clerk,  dismissed 
in  the  middle  of  the  quarter,  brought  an  action  for  the  wrongful  dismissal,  on  the 
special  contract,  and,  in  the  trial  of  the  action,  the  jury  were  instructed  that  they 
should  not,  in  assessing  damages,  take  into  account  the  services  rendered  by 
plaintiff  in  the  broken  quarter,  for  which  he  had  received  no  pay.  The  plaintiff 
then  brought  this  action  for  those  services,  and  here  the  court  held,  that  those 
services  should  have  been  taken  into  account  in  assessing  damages  in  the  former 
action,  and  that  no  recovery  could  be  had  in  this  action,  on  account  of  the  former 
recovery. 

♦686 


§  141.  EMPLOYEES   DISMISSED. —  RULE   OF   DAMAGES.  685 

any  case."  ..."  Mr.  Smith,  2  L.  Cases,  20  says,  '  that  a  clerk, 
servant,  or  agent,  wrongfully  dismissed,  has  his  election  of  three 
remedies.  1.  He  may  bring  a  special  action  for  his  master's 
breach  of  contract,  in  dismissing  him.  2.  He  may  wait  till  the 
termination  of  the  period  for  which  he  was  hired,  and  may  then 
perhaps  sue  for  his  whole  wages,  in  indebitatus  assumpsity  relying 
on  the  doctrine  of  constructive  service.  Gandell  v.  Pontigny,  4 
Camp.  375.  3.  He  may  treat  the  contract  as  rescinded,  and  may 
immediately  sue  upon  a  quantum  meruit,  for  the  work  he  actually 
performed.  Planch(5  v.  Colburn,  8  Bing.  14.'  I  think  Mr.  Smith 
has  very  properly  expressed  himself  with  hesitation,  as  to  the 
second  of  the  above  propositions ;  it  seems  to  me  a  doubtful 
point." 

Lord  Campbell,  Ch.  J.,  and  Coleridge,  J.,  both  agree  that  the 
party,  dismissed  without  cause,  may  bring  indebitatus  assumpsit^ 
for  the  service  actually  performed,  or  may  sue  for  the  breach  of 
tlie  contract  in  dismissing  plaintiff,  but  cannot  do  both. 

And  JErle.,  J.,  lays  down  the  rule  very  distinctly,  and,  as  it 
seems  to  us,  upon  the  only  sound  and  sensible  basis.  "  The  plain- 
tiff had  the  option,  either  to  treat  the  contract  as  rescinded,  and 
to  sue  for  his  actual  service,  or  to  sue  on  the  contract  for  the 
wrongful  dismissal.  ...  As  to  the  other  option,  referred  to  by 
Mr.  Smith,  I  think  that  the  servant  cannot  wait  till  the  expiration 
of  the  period  for  which  he  was  hired,  and  then  sue  for  his  wiiole 
wages,  on  the  ground  of  a  constructive  service,  after  dismissal.  I 
think  the  true  measure  of  damages  is  the  loss  sustained  at  the 
time  of  dismissal.  The  servant  after  dismissal  may  and  ought 
to  make  the  best  of  his  time,  and  he  may  have  an  opportunity 
of  turning  it  to  advantage.  I  should  not  say  any  thing  that 
might  seem  to  doubt  Mr.  Smith's  very  learned  note,  if  my 
opinion  on  this  point  were  not  fortified  by  the  authority  of  the 
Court  of  Exchequer  Chamber,  in  Elderton  v.  Emmens,  6  Com. 
B.  160." 

*  3.  The  cases  ^  in  this  country  have  sometimes  taken  a  similar 
view  of  the  rule  of  damages,  in  such  cases,  and  the  rule  must,  we 
think,  ultimately  prevail  everywhere.* 

'  Algeo  V.  Algeo,  10  Serg.  &  Rawle,  235 ;  Donaldson  r.  Fuller,  8  id.  505 ; 
Perkins  c.  Hart,  11  Wheaton,  237. 

*  Spear  &  Carlton  r.  Newell,  Sup.  Ct.  Vt.,  not  reported.  In  this  case  the 
pbuntiff  sued  for  the  price  of  rags  and  other  materials  furnished,  to  supply  a 

•687 


686  RAILWAY   DIRECTORS.  CH.  XXI. 

4.  Where  the  contract  specifies  the  time  for  which  the  party 
employed  shall  be  entitled  to  wages  after  notice  of  dismissal,  that 
is  to  be  regarded  as  stipulated  damages  for  the  breach  of  the  con- 
tract.^ But  even  this  cannot  be  recovered  under  the  indebitaPAs 
count,  for  work  and  labor.^ 

5.  Where  the  statute  provides,  that  the  laborers  of  contractors 
upon  a  railway  may  give  notice  to  the  company  of  their  wages  re- 
maining unpaid,  in  certain  contingencies,  and  thus  charge  the 
company,  the  provision  was  held  to  extend  to  laborers  and  work- 
men of  sub-contractors.' 

paper-mill  of  defendant,  under  special  contract.  The  materials  were,  at  one 
time,  unfit  for  use,  on  account  of  latent  defects,  for  which  by  the  contract  the 
plaintiffs  were  liable.  The  defendant  claimed  the  rule  of  damages  should  be  the 
rent  of  the  mill  and  the  expense  of  supplying  workmen  until  good  materials  were 
furnished.  But  the  court  held,  that  it  was  the  duty  of  the  defendant  to  make  the 
best  of  the  case,  on  his  part,  and  that  he  could  only  recover  such  damages  as 
intervened,  before  he  had  opportunity  to  supply  himself  with  proper  materials 
for  use. 

*  Hartley  v.  Harman,  11  Ad.  «fe  Ellis,  798. 

8  Fewings  v.  Tisdal,  1  Exch.  295. 

'  Kent  V.  New  York  Central  Railw.,  2  Kernan,  628.  Peters  v.  St.  Louis  & 
Iron  Mountain  Railw.,  24  Mo.  586.  Where  the  statute  in  such  case  makes  the 
company  liable  for  thirty  days'  labor  of  the  workmen,  it  is  not  indispensable  that 
the  labor  should  have  been  performed  in  thirty  consecutive  days,  to  entitle  them 
to  compensation  against  the  company.  Such  claims  may  be  sued  in  the  name  of 
an  assignee,  under  the  new  code  of  Missouri.    lb.     Fost,  §  232,  n.  5. 


§  142.   LEASES,  ETC.,  REQUIRE  CONSENT  OF  LEGISLATURE.     587 


♦CHAPTER  XXII. 


ARRANGEMENTS  BETWEEN   DIFFERENT  COMPANIES. 


SECTION  I. 


Leases,  and  similar  Contracts,  require  the  Assent  of  Legislature. 


1.  By  English  statutes  one  company  may  pass 

over  road  of  another,  but  contract  binding. 

2.  But  cannot  transfer  duty  of  one  company 

to  another,  without  legislative  grant, 
8.    Original  company  liable  to  public,  afier 

such  lease.     But  lessee  not  excused. 
4.    Courts  of  equity  enjoin  companies  from 

leasing,  without  legislative  consent. 
6.   But  such   contracts,  made  by  legislative 

grants,  are  to  be  carried  into  effect. 

6.  Majority  of  company  may  obtain  enlarged 

powers,  with  new  funds. 

7.  So  the  majority  may  defend  against  pro- 

ceedings in  legislature. 

8.  Legislative  sanction  will  not  render  valid 

contracts  ultra  vires. 


9.   Railway  company  cannot  assume  duties 
<f ferry,  without  legislative  grant. 

10.  The  grant  to  a  railway  of  the  implied 

right  to  establish  a  ferry  over  a  public 
river  directly  beyond  the  terminus  of  its 
road,  does  not  extend  the  responsibility 
of  the  company  to  the  ferry. 

11.  Such  a  ferry  may  become  an  encroach- 

ment u]wn  another  by  carrying  pas- 
sengers gratuitously. 

12.  The  grant  to  a  railway  of  a  ferry  in  ex- 

press terms  wiU  not  authorize  them  to 
carry  any  thing  except  jiassengers  and 
freight  passing  over  their  line. 


§  142.  1.  The  English  statute^  gives  special  permission  to  one 
company  to  contract  with  other  companies  for  the  right  of  passage 
over  their  track.  And  this  has  been  construed,  to  give  the  right 
to  contract  for  the  privileges  ordinarily  attaching  to  such  passage, 
of  stopping  at  the  stations,  and  taking  up  and  putting  down  pas- 
sengers and  freight.*'*  The  parties  will  be  bound  by  the  terms  of 
the  contract,  notwithstanding  the  ninety-second  section  of  the  act, 
which  gives  all  companies  and  persons  the  right  to  use  railways 
upon  the  payment  of  the  tolls  demandable.^ 

*  2.  But  an  agreement  between  railway  companies,  without  the 
authority  of  the  legislature,  transferring  the  powers  of  one  com- 
pany to  the  other,  is  against  good  policy,  and  a  court  of  equity 

'  8  and  9  Vict.  th.  20,  §  87. 

*  Simpson  p.  Denison,  10  Hare  51 ;  8.  c.  16  Jurist,  828 ;  2  Shelf.,  Ben.  ed.  694 ; 
13  Eng.  L.  &  Eq.  359. 

'  Great  Northern  Railw.  v.  Eastern  Co.  Railw.,  9  Hare,  806;  2  Shelf.,  Ben. 
ed.  696 ;  12  Eng.  L.  &  Eq.  224. 

•688,689 


588  ARRANGEMENTS   BETWEEN    COMPANIES.  CH.  XXII. 

will  not  lend  its  aid  to  carry  such  contract  into  effect.*  But  it 
has  been  held,  that  a  contract,  by  which  one  railway  gives  anotli*r 
the  right  of  passage,  upon  the  guaranty  of  a  certain  per  cent  profit 
upon  their  stock  and  all  other  investments,  is  a  payment  of  tolls 
within  the  statute.^  It  seems  to  be  considered,  by  the  English 
courts,  that  one  railway  leasing  its  entire  use  to  another  company 
does  not  come  within  this  section  of  the  general  statute,  and  as 
the  public  thereby  lose  the  security  of  the  first  company,  for  care 
and  diligence,  in  the  discharge  of  its  public  duties,  the  contract, 
unless  made  in  pursuance  of  an  act  of  the  legislature,  or  ratified 
by  such  act,  is  illegal,  as  against  public  policy.*^  At  all  events,  a 
court  of  equity  may  properly  decline  to  lend  its  aid  in  enforcing  a 
specific  performance  of  such  contract.'' 

*  3.  But  even  where  such  contracts  have  been  made,  by  permis- 
sion of  the  legislature,  it  has  been  held,  in  this  country,  that  the 
company  leasing  itself  does  not  thereby  escape  all  responsibility 

*  Same  case,  9  Hare,  306  ;  12  Eng.  L.  &  Eq.  244 ;  South  Yorkshire  Railw.  v. 
Great  N.  Railw.,  19  Eng.  L.  &  Eq.  513 ;  Johnson  v.  Shrewsbury  &  B.  Railw., 
3  De  G.  M.  &  G.  914 ;  s.  c.  id.  584 ;  Lond.  B.  &  South  Coast  R.  v.  L.  &  S.  W. 
R.  &  Portsm.  R.,  4  De  G.  &  J.  362 ;  s.  c.  5  Jur.  N.  S.  801,  where  the  subject 
is  extensively  examined  by  the  Lord  Chancellor,  and  the  cases  commented  upon. 

In  a  recent  case  before  the  Superior  Court  of  Cincinnati,  Ohio  &  Miss. 
Railw.  V.  Ind.  &  Cin.  Railw.,  the  question  of  the  right  of  a  railway,  chartered 
by  one  state  to  contract  with  the  railways  of  other  states  for  permanent  privi- 
leges in  running  cars  upon  such  railways,  is  extensively  considered  and  denied 
by  Storer,  J.  The  case  illustrates  very  forcibly  the  demand  which  obviously  exists 
for  making  all  lines  of  railway  extending  into  different  states  national  agencies 
rather  than  mere  state  institutions.  For  military-  and  postal  purposes  railways 
are  far  more  national  than  banks,  and  as  means  of  intercommunication  equally  so. 

*  The  South  Yorkshire  R.  &  R.  D.  v.  Great  Northern  Railw.,  9  Exch.  55; 
22  Eng.  L.  &  Eq.  531 ;  s.  c.  in  Exchequer  Ch.  9  Exch.  642 ;  s.  c.  25  Eng.  L. 
&  Eq.  482.  One  company  having  made  a  beneficial  contract  with  another  com- 
pany in  regard  to  traffic,  may,  with  a  lease  of  itself,  transfer  the  benefit  of  this 
contract.  London  &  S.  W.  Railw.  v.  South  .E.  Railw.,  8  Exch.  584;  s.  c.  20 
Eng.  L.  &  Eq.  417. 

*  Johnson  v.  The  Shrewsbury  &  Birmingham  Railw.,  3  De  G.  M.  &  G.  914; 
8.  c.  19  Eng.  L.  &  Eq.  584;  Troy  &  Rut.  Railw.  c.  Kerr,  17  Barb.  581.  This 
doctrine  is  reaffirmed  in  the  House  of  Lords  in  Shrewsbury  &  B.  Railw.  v.  L. 
&  N.  W.  R.,  in  May,  1857,  6  Ho.  of  Lds.  113. 

7  South  Yorkshire  &  River  Dun  Co.  v.  Great  N.  Railw.,  19  Eng.  L.  &  Eq. 
613;  Johnson  v.  Shrewsbury  &  Birmingham  R.,  3  De  G.  M.  &  G.  914;  s.  c. 
Shrewsbury  &  Birm.  Railw.  v.  London  &  N.  W.  &  Shropshire  Union  Railw., 
21  Eng.  L.  &  Eq.  319  ;  8.  c.  1  Eng.  L.  &  Eq.  122 ;  3  De  G.  M.  &  G.  115.  But 
see  cases  arite,  n.  5 ;  post,  §  185. 
•590 


§  142.   LEASES,  ETC.,  REQUIRE  CONSENT  OP  LEGISLATURE.     589 

to  the  public.  But  that  the  public  generally  may  still  look  to  the 
original  company,  as  to  all  its  obligations  and  duties,  which  grow 
out  of  its  relations  to  the  public,  and  are  created  by  charter  and 
the  general  laws  of  the  state,  and  are  independent  of  contract  or 
privity  between  the  party  injured  and  the  railway.^ 

But  there  seems  no  good  reason  to  excuse  the  company,  assum- 
ing to  act  as  common  carriers,  by  virtue  of  the  lease  of  another 
company's  road,  from  the  ordinary  responsibility  of  common  *  car- 
riers for  the  transportation  across  the  portion  of  the  route  held  by 
lease,  on  the  ground  of  the  responsibility  of  the  company  owning 
and  leasing  the  road,  even  when  the  loss  occurred  from  the  default 

•  Nelson  r.  The  Vernhont  &  Canada  Railw.,  26  Vt.  717.  But  it  is,  perhaps, 
worthy  of  consideration,  in  regard  to  this  case,  that  the  effect  of  legislative  con- 
sent to  the  lease  is  not  made  a  point  or  decided  in  this  case.  Sawyer  r.  The 
Rut  &  Burl.  Kailw.,  27  Vt.  370.  And  in  Parker  v.  Rensselaer  &  SanAga 
Railw.,  16  Barb.  315,  where  the  defendants  were  running  upon  the  Saratoga  & 
Sche.  Railw.  by  virtue  of  a  contract,  and  the  plaintiff's  cow  was  killed  through 
defect  of  cattle-guards,  which  it  was  the  duty  of  the  Saratoga  &  Sche.  Railw.  to 
maintain,  it  was  held  the  defendants  were  not  liable,  the  neglect  being  attribu- 
table to  the  Saratoga  &  Sche.  company.  Perhaps  the  only  question  in  regard  to 
the  soundness  of  this  decision  is,  whether  both  companies  are  not  chargeable  with 
negligence,  the  one  for  suffering  the  road  to  be  used,  and  the  other  for  using  it 
in  that  condition.  This  is  the  view  taken  of  the  law  in  Clement  e.  Canfield,  28 
Vt.  302 ;  aiUe,  §  169.     Ohio  &  Miss.  Rail.  v.  Dunbar,  20  111.  623. 

But  in  the  York  &  Mar}'land  Line  Railw.  e.  Winans,  17  How.  30,  it  is  decided, 
that  whci-c  a  railway  is  chartered  by  one  state,  and  all  its  stock  owned  and  the 
road  operated  by  a  cprporation  erected  and  existing  in  another  state,  the  first 
corporation  is  nevertheless  liable  to  the  patentee  of  an  improvement  in  railway 
cars  for  the  use  of  his  patent,  cars  of  that  construction  having  been  procured 
and  used  upon  the  road  by  the  corporation  owning  the  stock  of  such  company. 
Campbell,  J.,  said,  "  The  corporation  cannot  absolve  itself  from  the  performance 
of  its  obligations,  without  the  consent  of  the  legislature." 

But  one  company  giving  permission  to  another  to  use  a  part  of  their  track,  do 
not  thereby  become  bound  to  keep  the  track  in  such  repair  as  to  be  safe  for  use. 
Nor  do  such  company  thereby  assume  any  obligation  towards  the  passengers 
carried  thereon  by  such  other  company.  Murch  r.  Concord  Railw.,  9  Foster,  9 ; 
jt>o»/,  §  183.  See  also  Briggs  v.  Ferrell,  12  Ired.  1.  And  in  Vermont  Central 
Railw.  r.  Baxter,  22  Vt.  365,  the  company  are  held  liable  for  the  acts  of  the  con- 
tractor in  the  exercise  of  the  right  of  eminent  domain,  in  obtaining  materials  for 
constructing  the  road. 

And  a  railway  company  leasing  the  entire  use  of  its  road  to  another  company, 
is  still  responsible  for  daraiiges  caused  by  fires  communicated  by  the  engines  of 
the  lessees  while  operating  the  road.  And  it  will  make  no  difference  that  one  of 
the  buildings  destroyed  by  the  fire  caught  from  another  building  to  which  the  fire 
first  communicated.     Ingersoll  r.  Stockbridge  &  Pittsfield  Railw.,  8  Allen,  438. 

•691 


690  ARRANGEMENTS   BETWEEN    COMPANIES.  CH.  XXII. 

of  the  latter  company  in  not  performing  the  stipulations  in  thdr 
lease.^  Nor  can  the  lessees  of  a  railway  excuse  themselves  from 
responsibility  in  such  cases  on  the  ground  that  their  lease  is  void, 
being  taken  without  the  sanction  of  the  legislature.^ 

And  a  railway  company  is  always  responsible  for  an  injury  oc- 
casioned by  want  of  proper  care  and  prudence  on  the  part  of 
its  servants,  in  the  management  of  a  train  which  is  under  their 
exckisive  care,  management,  and  control,  although  belonging  to 
another  company.^''  But  if  such  injury  is  occasioned  by  the  negli- 
gence of  another  company,  whose  car,  for  the  purpose  of  being 
loaded  by  the  plaintiff,  has  been  placed  upon  a  side  track  of  de- 
fendants' which  is  in  constant  use  by  other  roads,  that  other  com- 
pany is  bound  to  use  reasonable  care  to  prevent  a  collision,  and  if 
it  fails  to  do  so,  whereby  the  plaintiff  receives  an  injury,  lie  can- 
not recover  of  the  company  whose  cars  caused  the  collision.^'' 
And  if  such  injury  results  from  the  negligence  of  another  company, 
which  has  a  joint  right  with  the  defendants  to  use  defendants' 
track  under  a  lease,  and  which  is  running  trains  over  defendants' 
road  on  its  own  account,  the  defendants  are  not  responsible.^'' 

There  can  be  no  question  of  the  liability  of  the  company  leas- 
ing another  line  of  railway,  whether  within  or  beyond  the  limits 
of  the  state  where  the  first  company  exists,  for  all  acts  and  omis- 
sions whereby  injury  accrues  to  other  parties,  while  so  operating 
such  other  line,  as  lessees,  to  the  same  extent  and  in  the  same 
manner  precisely  as  if  such  injury  had  occurred  upon  the  line  of 
the  first  company.  And  it  seems  to  be  the  inclination  of  the 
American  courts  to  hold  this  in  regard  even  to  those  companies 
who  have  assumed  to  operate  the  roads  of  other  companies,  wheth- 
er temporarily  or  permanently,  and  whether  by  express  legislative 
sanction  or  not.^^  This  subject  is  very  extensively  discussed  in 
the  case  last  referred  to,  and  the  views  presented,  *  although 
differing  somewhat  from  those  hitherto  adopted  by  the  English 
courts,  certainly  have  very  much  to  commend  them  to  favorable 
consideration.  But  the  original  company  will  be  responsible  even 
for  the  safe  delivery  of  goods  carried  over  the  line,  where  it  is 
leased  to  a  corporation  out  of  the  state.^ 

®  McCluer  v.  Manchester  &  Lawrence  Railw.,  13  Gray,  124. 
"*  Fletcher  v.  Boston  &  Maine  Railw.,  1  Allen,  9. 
"  Bissell  r.  Mich.  So.  &  N.  Ind.  Railw.,  22  N.  X.  258. 
"  Langley  v.  Boston  &  Maine  Railw.,  10  Gray,  103. 
•692 


§  142.   LEASES,  ETC.,  REQUIRE  CONSENT  OP  LEGISLATURE.     591 

4.  The  English  courts  have  in  some  instances  even  restrained 
railway  companies  from  carrying  contracts  of  leasing  into  effect, 
without  the  authority  of  the  legislature.^ 

5.  But  such  contracts  being  legal,  and  not  inconsistent  with 
the  policy  of  the  acts  of  parliament,  are  to  have  a  reasonable  con- 
struction ;  and  where,  by  the  creation  of  new  companies  and  other 
facilities,  the  business  is  very  largely  increased,  the  parties  are 
still  to  abide  by  the  fair  construction  of  the  original  contract,  as 
applicable  to  the  altered  circumstances." 

6.  There  is  no  doubt  of  the  right  of  a  railway  company  in  Eng- 
land to  apply  to  the  legislature  for  enlarged  powers,  even  for  the 
power  to  become  amalgamated  with  other  companies,  so  as  to 
make  one  consolidated  company.  And  contracts  between  the  dif- 
ferent companies,  for  this  purpose,  have  been  there  recognized, 
and  enforced,  in  courts  of  equity.^*  And  while  the  courts^  of 
equity  will  enjoin  the  companies  from  applying  their  funds  to 
pay  the  expenses  of  such  parliamentary  proceedings,  they  will 
not  enjoin  them  from  obtaining  additional  powers,  by  legislative 
acts,  when  other  parties  volunteer  to  furnish  the  requisite  funds.^^ 
And  there  seems  to  be  no  question  made,  in  the  English  courts, 
of  the  power  of  parliament  to  extend  the  line  of  a  railway,  or  to 
consolidate  existing  companies,  and  that  the  shareholders  are 
bound,  by  the  acceptance  of  such  legislative  provisions,  by  a  ma- 
jority of  the  company,  or  by  contracts  to  procure  such  powers  by 
act  of  parliament.^^ 

"  Winch  r.  Birkenhead,  L.  &  C.  Railw.,  6  De  G.  &  S.  562;  8.  c.  18  Eng. 
L.  &  Eq.  506 ;  Beman  v.  Rufford,  1  Simons  (N.  S.)  550 ;  s.  c.  6  Eng.  L.  &  Eq.  106. 

*•*  Ea«t  Lancashire  Ilailw.  r.  The  L.  &  Yorkshire  Railw.,  9  Exch.  591 ;  s.  c. 
25  Eng.  L.  &  Eq.  465. 

'*  Mozley  ».  Alston,  1  Phillips,  790,  where  Lord  Cottenham  said :  ♦'  There  is 
scarce  a  railway  in  the  kingdom  that  does  not  come  to  parliament  for  extension 
of  powers." 

'*  Stevens  r.  South  Devon  Railw.,  9  Hare,  818;  Great  Western  Railw.  v. 
Rushout,  5  De  G  «&  S.  290 ;  s.  c.  10  Eng.  L.  &  Eq.  72 ;  post,  §  252. 

"  Great  Western  Railw.  r.  Birm.  &  Oxford  Junction  Railw.,  5  Railw.  C.  241. 
The  Lord  Chancellor  says,  that  to  nullify,  in  a  court  of  ecjuity,  all  contracts  made 
upon  the  faith  of  obtaining  the  consent  of  the  legislature  to  carry  them  into  effect, 
would  be  "  to  nullify  many  family  agreements,  and  all  contracts  by  persons  pro- 
jecting new  companies."     Shrewsbury  &  Birm.  Railw.  r.  London  &  N.W.  Railw., 

4  De  G.  M.  &  G.  115;  s.  c.  9  Eng.  L.  &  E<i.  394. 

And  it  has  been  held,  in  an  important  case  in  the  Circuit  Court  of  the  United 
States,  Columbus,  Piqua.  &  Ind.  liailw.  r.  Indianapolis  &  UcUefontainc  Railw., 

5  McLean,  450,  that  an  agreement  between  two  railway  companies  to  build  their 


692  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  X3». 

*  7.  And  it  has  accordingly  been  held,  that  a  public  company, 
as  the  commissioners  of  sewers  for  a  county,  might  impose  a  rate 
to  defray  the  expense  of  opposing  a  bill,  in  parliament,  which 
threatened  to  affect  the  interests  of  the  company  unfavorably, 
the  same  as  they  might  to  defray  the  expense  of  litigation  in 
court.^^  Lord  Campbell  said :  "  Our  determination  rests  upon 
the  ground  that  this  opposition  was  clearly  bona  fide,  and  clearly 
prudent." 

8.  In  a  very  recent  case,  in  Vice-Chancellor  Wood^s  court,i^ 
*the  defendants  entered  into  an  agreement  to  purchase  plain- 
tiffs' property,  there  being  at  the  time  no  legislative  permis- 
sion   either  to  buy  or   sell  such  property.      Subsequently  such 

roads  from  certain  cities,  to  meet  at  a  given  place,  and  that  the  charges  for  trans- 
portation shall  be  regulated  by  both  companies,  and  also  the  meeting  of  the  cars, 
and  the  through  freight  cars,  is  a  valid  contract,  and  will  be  enforced  by  injunc- 
tion in  equity.  That  to  fix  the  charge  for  the  transportation  of  passengers  and 
freight,  is  the  exercise  of  the  corporate  franchise  of  each  company,  and  an  agree- 
ment that  both  companies  shall  regulate  this  is  no  abandonment  or  transfer  of  the 
franchise  of  either, 

'*  Reg.  V.  Commissioners  of  Norfolk,  15  Q.  B.  549.  The  ground  upon  which 
the  decisions  in  England  and  America,  which  hold  the  franchises  of  corporations 
not  to  be  assignable  except  by  consent  of  the  legislature,  rest,  is  mainly  the  same 
as  that  upon  which  it  has  been  held  in  this  country,  that  such  franchises  are  be- 
yond legislative  control,  namely,  that  the  charter  constitutes  a  contract  between 
the  sovereignty  and  the  corporation,  on  the  one  part,  for  the  grant  of  certain 
privileges  and  immunities,  and  upon  the  other  for  the  performance  of  certain 
duties  and  functions,  which  are  deemed  an  equivalent  or  consideration.  And 
this  feature  is  of  peculiar  force  in  the  case  of  that  class  of  corporations  upon  which 
the  legislature  have  conferred  important  public  duties  and  functions,  as  railways 
and  banks,  and  some  others.  The  state  confers  upon  a  railway  some  of  its  most 
essential  powers  of  sovereignty,  that  of  eminent  domain,  and  of  a  virtual  mo- 
nopoly in  transportation  of  freight  and  passengers,  and  in  return  therefor  stipu- 
lates for  the  faithful  performance  of  these  duties  by  the  corporation.  The 
corporation  have  no  more  right,  in  equity  and  justice,  to  transfer  their  obliga- 
tions to  other  companies,  or  to  natural  persons,  than  the  state  have  to  withdraw 
them  altogether.  Either  would  be  regarded  as  an  abuse  of  the  powers  conferred, 
or  an  impairing  of  the  just  obligation  of  the  contract  resulting  from  the  grant, 
and  its  acceptance. 

*'  Leominster  Canal  Co.  v.  Shrewsbury  &  Hereford  Railw.,  3  Kay  &  J.  654 ; 
8.  c.  29  Law  Times,  842,  August,  1857.  The  learned  judge  concludes  his  opinion 
in  this  case  in  a  manner  very  creditable  to  his  sense  of  fair  dealing  and  good  faith 
in  the  conduct  of  railway  directors  :  "  I  cannot,  however,  but  feel  that  solicitors 
acting  for  railway  companies,  like  that  of  the  defendants,  must  be  in  a  most 
painful  position  when  they  are  unable  to  rely  (as  here  they  cannot)  upon  the 
good  faith  or  even  the  common  honesty  of  directors." 
•  693,  694 


§  142.        LEASES,   ETC.,   REQUIRE   CONSENT   OP  LEGISLATURE.  593 

permission  was  obtained,  and  steps  taken  by  the  defendants, 
under  the  act,  to  carry  the  contract  into  effect,  but  they  ulti- 
mately refused  to  complete  their  purchase,  on  the  ground  that 
the  original  agreement  was  not  under  the  seal  of  the  corpora- 
tion, nor  signed  by  two  of  their  directors.  The  plaintiffs  then 
filed  a  bill  for  specific  performance,  and  it  was  held,  that  the  bill 
must  be  dismissed,  on  the  ground  that  the  contract  was  origi- 
nally ultra  vires,  not  being  made  dependent  upon  obtaining  the 
consent  of  the  legislature.  It  is  also  said,  that  the  contract 
would  not  be  binding  upon  the  company,  unless  made  under 
their  common  seal,  that  being  required  in  the  defendants'  spe- 
cial act,  and  if  it  w^re  binding,  that  mandamus  is  the  more 
appropriate  remedy. 

9.  A  railway  company  cannot  acquire  the  franchise,  so  as  to 
be  bound  to  perform  the  duty  of  an  existing  ferry,  without  the 
authority  of  the  legislature,  given  either  expressly,  or  by  neces- 
sary implication.^ 

10.  And  the  grant  to  a  railway  company,  having  its  terminus 
at  the  bank  of  the  river  Hudson,  opposite  the  city  of  Albany,  of 
power  to  connect  its  terminus  upon  one  side  of  the  river  with  a 
depot  upon  the  opposite  bank  ;  though  it  does,  by  implication, 
give  the  right  to  establish  a  ferry,  does  not  make  it  a  part  of  the 
railway,  so  that  passengers  crossing  the  river  may  be  regarded  as 
carried  under  the  general  railway  franchise. 

11.  And  where  the  grant  of  such  a  ferry  was  restricted,  by 
express  condition,  to  the  transportation  of  freight  and  persons 
carried  by  the  railway,  and  their  servants  and  employees,  it  was 
held  that  the  company,  by  constantly  carrying  other  persons  gra- 
tuitously across  their  ferry,  were  guilty  of  an  infringement  of  the 
•  franchise  of  a  pre-existing  ferry,  the  same  as  if  such  persons  were 
carried  for  toll.^^ 

12.  And  the  grant  in  express  terms  of  a  ferry  as  a  portion  of 
the  line  of  a  railway,  will  not  empower  the  railway  company  to 
use  the  ferry  for  any  other  purpose  than  the  transportation  of  the 
freight  and  passengers  of  the  company.^ 

**  Battle,  J.,  in  State  o.  Wilmington  &  Manch.  Railw.,  Busbee,  234. 
•»  Aikin  r.  The  Western  Railw.,  20  New  York,  870. 
«  Fitch  p.  N.  H.  N.  L.  &  Stonington  Railw.  Co.,  30  Conn.  38. 
38  •  696 


594 


ARRANGEMENTS  BETWEEN   COMPANIES. 


CH.  ZXII. 


SECTION   II. 


Necessity  of  Contracts  of  Corporations  being  under  seal. 


1.  The  English  courts  manifest  great  reluc- 
tance to  abandon  the  former  rule  of  law 
on  this  subject. 

n.  2.  Extended  review  of  the  English  and  some 
of  tie  American  cases. 


2.  Reference  to  later  decisions. 

3.  What  amounts  to  a  seal,  according  to 

modem  use. 


§  143.  1.  The  apparent  hesitation  among  the  English  courts 
and  text-writers  ^  to  accept  the  acknowledged  rule  of  the  Ameri- 
can courts,  that  a  corporation  may  as  well  contract,  by  mere 
words,  without  writing,  or  by  implication  of  law,  or  by  vote,  or  by 
writing,  without  seal,  as  a  natural  person ;  in  short,  that  in  the 
case  of  a  contract,  by  a  corporation,  a  seal  is  of  no  more  neces- 
sity or  significance  than  in  the  case  of  a  contract  by  a  natural 
person,  would  seem  to  justify  some  reference  here  to  the  present 
state  of  the  English  law  upon  the  subject.^ 

'  Hodges  on  Railways,  69,  60,  61,  and  notes. 

*  It  would  seem  a  very  obvious  view  of  the  question,  that  if  a  seal  is  not,  as 
was  at  one  time  claimed,  indispensable  to  the  authentication  of  a  corporate  con- 
tract, if,  in  short,  it  can  be  dispensed  with  in  any  case,  it  becomes  merely  a 
matter  of  reason  and  discretion,  or  more  properly,  perhaps,  of  intention  and 
convenience,  in  order  to  show  the  definite  act  of  the  company,  and  when  it  shall 
be  required,  or  when  a  contract  shall  be  said  to  be  complete  without  it,  is  rather 
a  question  of  usage  than  an  unbending  rule  of  law.  Beverley  v.  Lincoln  Gas 
Light  &  Coke  Co.,  6  Ad.  &  Ell.  829,  is  the  case  of  gas-meters  ordered  for  the 
use  of  the  company  by  one  of  the  committee,  taken  on  trial,  and  not  returned 
in  a  reasonable  time,  and  the  company  held  liable.  This  is  the  earliest  case  in 
the  English  books  where  the  courts  in  that  country  made  any  formal  departure 
from  the  old  rule,  and  it  was  here  held,  that  a  corporation  aggregate  is  liable  in 
assumpsit  for  goods  sold  and  delivered.  Patteson,  J.,  refers  to  the  American 
authorities  upon  the  subject,  and  says  :  "  It  is  well  known  that  the  ancient  rule 
of  the  common  law,  that  a  corporation  aggregate  could  speak  and  act  only  by 
its  common  seal,  has  been  almost  entirely  superseded,  in  practice,  by  the  courts 
of  the  United  States."  And  after  stating  the  greater  facilities  here  for  advance- 
ment in  jurisprudence,  the  learned  judge  enters  a  formal  disclaimer  against 
•'the  right  or  the  wish  to  innovate  on  the  law  upon  any  ground  of  inconven- 
ience, however  strongly  made  out;"  "but  when  we  have,"  says  the  learned 
judge,  *'  to  deal  with  a  rule  established  in  a  very  different  state  of  society,  at  a 
time  when  corporations  were  comparatively  few  in  number,  and  upon  which  it 
•was  very  early  found  necessary  to  ingraft  many  exceptions,  we  think  we  are 
justified  in  treating  it  with  some  degree  of  strictness,  and  are  called  upon  not  to 
recede  from  the  principle  of  any  relaxation  in  it,  which  we  find  to  have  been 


§  143.  WHAT  CONTRACTS   MUST   BE   UNDER  SEAL.  595 

*  2.  The  English  courts  in  many  recent  cases  seem  to  have  ap- 
plied the  general  rule  of  presumption,  by  which  the  conduct  of 

established  by  previous  decisions."  And  this  seems  to  form  the  basis  of  the  sub- 
sequent decisions  of  the  English  courts  upon  the  subject.  The  decisions  have 
evinced  an  effort  to  preserve  the  rule,  and  at  the  same  time  to  invent  and  ingraft 
such  a  number  of  exceptions  upon  it  as  really  to  meet  all  the  inconvenience  or 
absurdity  which  could  fairly  be  objected  against  the  old  rule.  But  in  settling 
the  exct-ptions,  the  decisions  have  not  always  commended  themselves  as  consist- 
ent either  with  reason  or  with  each  other.  Thus  affording  another  striking 
illustration  of  the  folly  of  attempting  to  maintain  an  absurd  rule,  by  multiplying 
exceptions,  every  one  of  which  was  based  upon  a  principle  of  reason,  which,  if 
carried  to  its  legitimate  results,  would  subvert  the  rule  itself.  This  was  in  1837, 
in  the  K.  B.,  and  established  the  exception  to  the  old  rule  of  executed  contracts 
for  goods  sold  and  used  by  the  company  in  the  business  for  which  it  was  created. 
The  next  year  the  same  court  held,  that  a  corporation  might  also  maintain  an 
action  upon  an  executory  contract  not  under  seal.  Church  v.  The  Imperial  Gas- 
Light  &  Coke  Co.,  6  Ad.  &  Ell.  8-16.  This  was  upon  a  contract  to  take  gas  of 
the  company,  which  the  defendant  below  declined  to  receive.  In  1843  a  case 
arose  in  the  Common  Pleas,  Fishmonger's  Co.  v.  Robertson,  5  M.  &  G.  131. 
This  was  an  action  upon  a  contract  to  pay  the  plaintiffs  1,OOOZ.  to  withdraw  their 
opposition  to  a  bill  in  parliament,  and  to  promote  its  passage  into  a  law,  the  parties 
being  mutually  interested  in  the  same,  and  alleging  performance  of  the  contract 
on  the  part  of  the  plaintiffs.  The  subject  was  very  much  considered,  and  an  elab- 
orate opinion  delivered  by  Tindal,  Ch.  J.,  and  it  was  decided,  that  the  contract 
having  been  executed  on  the  part  of  the  corporation,  and  the  defendants  having 
received  the  full  consideration,  were  bound  by  the  contract,  and  that  the  con- 
tract was  not  void  as  against  public  policy.  See  also  Arnold  v.  The  Mayor  of 
Poole,  4  Man.  &  Gr.  860  (1842),  to  the  same  effect,  where  it  is  held,  that  no 
municipal  corporation  but  that  of  London  can  appoint  an  attorney  except  under 
the  corporate  seal.  Mayor  of  Ludlow  v.  Charlton,  6  M.  &  W.  816  (1840). 
But  the  Court  of  Q.  B.,  in  1846  (Sanders  v.  St.  Neot's  Union,  8  Q.  B.  810), 
held,  that  if  work  be  done  for  a  corporation,  and  adopted  by  them  for  purposes 
connected  with  the  incorporation,  although  not  under  seal,  they  are  liable  for  it. 
The  case  of  the  Governor  &  Company  of  Copper  Miners  ».  Fox,  16  Q.  B.  229 
(1851),  holds  that  the  plaintiffs  could  not  sue  upon  a  mutual  contract,  be- 
cause the  plaintiffs'  portion  of  it,  not  being  under  seal,  and  being  for  the  deliv- 
er}* of  iron  rails,  and  the  plaintiffs  being  incorporated  for  dealing  in  copper,  not 
coming  within  the  propter  business  of  the  company,  as  a  trading  company,  they 
were  not  bound  by  it,  and  by  consequence  the  defendants  were  not.  This  case 
admits  the  exception  from  the  old  rule  of  all  contracts  pertaining  to  the  proper 
business  of  the  incorporation,  and  then  attempts  a  distinction  between  dealing 
in  iron  and  copper !  —  a  distinction  which,  if  it  be  of  any  force,  would  show  that 
the  contract,  being  ultra  vires,  would  not  bind  the  company  in  any  form.  The 
next  case  (Homersham  v.  Wolverhampton  Waterworks,  6  Exch.  193;  8.  c.  6 
Railw.  C,  790,  ante,  §  113),  in  the  order  of  time,  is  for  extra  work,  under  a  con- 
tract, which  was  done  in  express  violation  of  the  provisions  of  the  general  contract, 
in  regard  to  extra  work,  and  was  not  authorized,  in  the  manner  required  in  rela- 

*696 


596  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

*  natural  persons  is  to  be  judged  of,  to  corporations.  Thus^  it  was 
held,  that  where  a  company  has  stood  by  and  seen  works  *  por- 
tion to  contracts,  by  the  company's  charter.  It  seems  to  have  been  correctly 
enough  decided,  upon  either  ground,  that  no  recovery  could  be  had.  Ante,  §  113, 
and  cases  cited.  Lamprell  v.  Billericay  Union,  3  Exch.  283  (1849) .  But  Cope 
V.  Thames  Haven  Dock  &  Railw.  Co.,  3  Exch.  841,  seems  to  be  an  express  decision 
affirming  the  general  necessity  of  the  corporate  seal  to  bind  the  company  (1849). 
So  also  Diggle  v.  The  London  &  Blackwall  Railw.,  5  Exch.  442,  is  of  the  same 
character,  being  for  extra  work  performed  in  express  violation  of  the  general 
contract ;  and  there  are  some  other  cases  of  this  kind  in  the  English  Reports. 

But  the  next  case  in  the  order  of  time,  involving  the  general  question,  is  Fin- 
lay  V.  Bristol  &  Exeter  Railw.,  7  Exch.  409  ;  s.  c.  9  Eng.  L.  &  Eq.  483,  and  here 
it  was  held,  that  although  a  corporation  was  liable  for  use  and  occupation,  on  a 
parole  demise,  it  is  only  liable  for  the  actual  occupation,  and  a  continuous  occupa- 
tion, for  several  years,  will  not  render  the  corporation  tenants  from  year  to  year. 
In  Clark  v.  The  Guardians  of  the  Cuckfield  Union,  1  B.  C.  C.  81 ;  s.  c.  11  Eng. 
L.  &  Eq.  442,  the  cases  are  all  elaborately  reviewed  by  Wightman,  J.,  and  the 
conclusion  arrived  at,  that  whenever  the  purposes  for  which  a  corporation  is 
created  render  it  necessary  that  work  should  be  done,  or  goods  supplied,  to  carry 
such  purposes  into  effect,  and  such  work  is  done,  or  such  goods  supplied,  and 
accepted  by  the  corporation,  and  the  whole  consideration  for  payment  is  ex- 
ecuted, the  corporation  cannot  refuse  to  pay,  upon  the  ground  that  the  contract 
was  not  under  seal ;  and  the  case  of  Lamprell  v.  Billericay  U^nion,  3  Exch.  283, 
is  seriously  questioned.  In  Lowe  v.  The  London  &  N.  W.  Railw,  17  Jur.  375; 
8.  c.  14  Eng,  L.  &  Eq.  18,  it  is  held,  where  a  railway  have  taken  possession  of 
land,  and  occupied  it,  by  the  permission  of  the  owner,  for  the  purposes  of  their 
incorporation,  that  they  are  liable  to  be  sued  in  assumpsit,  for  use  and  occupation, 
notwithstanding  they  have  not  entered  into  a  contract  under  their  common 
seal.  But  in  the  case  of  Smart  v.  The  Guardians  of  the  Poor  of  West  Ham 
Union,  10  Exch.  867;  s.  c.  30  Eng.  L.  &  Eq.  560  (1855),  the  question  came 
before  the  Court  of  Exchequer,  and  the  judges  manifested  a  firm  deter- 
mination to  adhere  strictly  to  the  old  rule.  Parke,  B.,  says :  "  With  respect  to 
the  case  of  Clark  v.  The  Guardians  of  the  Cuckfield  Union,  I  must  say  that  I 
am  not  satisfied  with  the  observations  of  my  brother  Wightman,  for  if  that  case 
be  correctly  decided,  the  effect  would  be  to  overrule  several  previous  decisions 
of  this  court."  And  Alderson,  B.,  says  :  "  We  must  adhere  to  former  decisions, 
till  overruled  by  a  court  of  error." 

But  in  the  case  of  the  Australian  Royal  Mail  Co.  r.  Marzetti,  in  June,  1855, 
in  the  Court  of  Exchequer,  11  Exch.  228;  Pollock,  Ch.  B.,  says,  in  regard 
to  a  contract  not  under  seal:  "The  principle  applicable  to  corporations  is, 
that  in  respect  of  small  matters,  where  it  would  be  absurd  and  inconvenient  to 
require  them  to  put  their  seals  to  contracts,  in  those  cases  they  may  contract 
without  seal,"  also  "m  respect  of  matters  for  which  it  was  created.''''  —  "  These 
principles,"  adds  the  learned  chief  baron,  "  are  founded  on  justice,  public  con- 


'  Hill  r.  South  Staffordshire  RaUw.  Co.,  2  De  G.  J.  &  S.  230 ;  11  Jur.  N.  S.  192. 
♦  597,  598 


§  143.  WHAT  CONTRACTS   MUST   BE  UNDER  SEAL.  1^91 

formed,  it  will  be  held  to  have  assented  to  them,  as  much  as  if  it 
had  been  a  natural  person.     But  the  principle  that  a  company 

venience,  and  sound  sense,"  and  he  might  have  said,-  perhaps,  with  equal  pro- 
priety, will  finally  be  found  virtually  to  include  all  the  legitimate  business  of 
corporations.  For  it  is  impossible  to  make  any  sensible  distinction,  between  the 
proper  business  of  a  corporation,  as  appears  upon  the  face  of  their  charter,  and 
that  which  is  purely  incidental  or  ancillary  to  the  proper  business  of  the  corpora- 
tion. And  tliis  is  conceded  by  Lord  Camppell,  in  the  Governor  &  Company  of 
Copper  Miners  r.  Fox,  supra,  when  refining  upon  the  very  elemental  distinction 
between  a  trade  in  iron  and  copper. 

And  if  we  allow  corporations  to  bind  themselves,  without  seal,  in  all  the  busi- 
ness created  by  their  charter,  and  in  all  that  is  incidental  thereto,  we  shall  have 
few  cases  remaining. 

The  only  remaining  case,  directly  upon  the  subject,  which  has  yet  reached  us, 
is  that  of  Henderson  v.  The  Australian  Royal  Mail  Steam  Nav.  Co.,  5  El.  &  Bl. 
409 ;  8.  c.  32  Eng.  L.  &  Eq.  167  (June,  1855),  where  the  defendants,  a  company 
incorporated  for  the  purpose  of  carrj-ing  the  mails,  passengers,  and  cargo,  be- 
tween Great  Britain  and  the  Cape  of  Good  Hope  and  Australia,  and  for  that 
purpose  to  construct  and  maintain  steam  and  other  vessels,  and  to  do  all  such 
matters  as  might  be  incidental  to  such  undertaking,  entered  into  a  contract  with 
the  plaintiff  to  go  out  to  Sydney  and  bring  home  a  sloop  belonging  to  the  company 
which  was  unseaworthy,  and  it  was  held,  that  the  action  might  be  maintained,  for 
the  service  performed  under  the  contract,  although  the  contract  was  not  under  seal. 

The  opinion  of  the  judges  at  length  will  afford  the  safest  commentarj-  upon 
the  present  state  of  the  English  law  upon  the  subject,  and  will  present  a  ver\-  in- 
structive contrast  with  the  quiet,  and  perfectly  settled,  and  satisfactory  state  of 
the  law  here  upon  the  same  subject,  from  having,  as  we  believe,  more  wisely, 
abandoned  a  rule  which  grew  out  of  an  uncultivated  state  of  society,  and  which 
had  a  very  limited  application,  when  adopted,  and  which  is  found,  in  practice, 
utterly  inconsistent  with  the  views  of  business  men,  in  all  commercial  countries, 
at  the  present  day. 

Wightman,  J, :  "  I  am  of  opinion  that  our  judgment  should  be  for  the  plaintiff. 
This  is  an  action  against  the  Australian  Royal  Mail  Steam  Navigation  Company, 
which  is  a  company  constituted  expressly  for  the  purpose  of  carrying  on  a  trade 
by  vessels  ;  it  is  incorporated  '  for  the  purpose  of  undertaking  the  establishment 
and  maintenance  of  a  communication,  by  means  of  steam  navigation,  or  other- 
wise, and  the  carrying  of  the  royal  mails,  passengers,  and  cargo,  between  Great 
Britain  and  Ireland,  and  the  Cape  of  Good  Hope  and  Australasia,'  and  for  that 
purpose  it  must  maintain  and  employ  many  vessels.  Can  it  be  doubted  that 
amongst  the  ordinary  operations  of  the  company  there  would  arise  a  necessity 
for  employing  persons  to  navigate  or  bring  home  vessels  which  met  with  acci- 
dents abroad?  The  wonls  of  the  contract,  as  set  out  in  the  declaration,  show 
an  emplojTnent  directly  within  the  scope  of  the  objects  for  which  the  conq)any 
was  incorporated. 

"  It  is  true  there  is  a  conflict  of  authorities  which  it  is  difficult  to  reconcile. 
Two  or  three  cases  in  the  Court  of  Exchequer,  Lamprell  r.  The  Billericay 
Union,  3  Exch.  283,  and  the  Mayor  of  Ludlow  r.  Charlton,  6  M.  &  W.  815,  and 


598  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

*  is  not  bound  by  a  deed  of  agreement  entered  into  by  its  direc- 
tors or  trustees  for  and  on  behalf  of  the  company,  which  is  not 

Arnold  r.  The  Mayor  of  Poole,  4  Man.  &  Gr.  860,  in  the  Court  of  Common 
Pleas,  appear  to  militate  against  the  view  taken  by  this  court.  But  those  deci- 
sions preceded  upon  a  principle  adapted  to  municipal  corporations,  which  are 
created  for  other  objects  than  trade ;  and  the  Court  of  Exchequer  applied  that 
principle  to  modem  trading  companies,  which  are  of  an  entirely  different  character. 

"  In  early  times  there  was  a  great  relaxation  of  the  rule  which  required  that 
the  contracts  of  corporations  should  be  under  seal,  and  that  relaxation  has  been 
gradually  extended.  At  first  the  relaxation  was  made  only  in  those  cases  men- 
tioned by  Mr.  Lush,  when  the  subject-matter  of  the  contract  was  of  small  moment 
and  frequent  occurrence,  which  in  the  case  of  municipal  corporations  might  be 
the  only  exceptions  necessary.  But  in  the  later  cases  there  was  a  further  re- 
laxation, especially  in  the  case  of  corporations  created  by  charter  for  trading 
purposes,  and  other  like  corporations.  The  general  result  of  the  cases  men- 
tioned in  Clark  v.  The  Guardians  of  the  Cuckfield  Union,  16  Jur.  686;  s.  c.  11 
Eng.  L.  &  Eq.  442,  is,  that  in  the  case  of  trading  corporations,  wherever  the 
contract  relates  and  is  essential  to  the  purpose  for  which  the  company  was  in- 
corporated, it  may  be  enforced,  though  not  under  seal.  In  deciding  that  case,  I 
reviewed  all  the  cases,  and  adhere  to  the  opinion  which  I  then  expressed,  that 
in  such  a  case  as  the  present,  where  the  contract  is  essentially  necessary  to  the 
objects  of  the  company,  and  directly  within  the  scope  of  their  charter,  it  may  be 
enforced,  though  made  by  parol." 

Erie,  J.:  "I  am  of  opinion  that  the  contract  is  binding  on  the  corporation, 
though  not  under  seal,  on  the  ground  that  it  is  directly  within  the  scope  of  the 
company's  charter. 

"The  authorities  are  apparently  conflicting,  but  none  conflict  with  the  prin- 
ciple laid  down  by  my  brother  Wightman,  in  which  I  concur.  In  Beverley  v.  The 
Lincoln  Gas  Light  and  Coke  Company,  6  Ad.  &  Ell.  829,  the  supply  of  gas  was 
directly  incident  to  the  purpose  for  which  the  company  was  incorporated.  So 
also  in  Church  v.  The  Imperial  Gas  Light  &  Coke  Company,  6  Ad.  &  Ell.  846 ; 
and  in  Sanders  v.  The  Guardians  of  the  St.  Neot's  Union,  8  Q.  B.  810;  and  in 
the  elaborate  judgment  of  Wightman,  J.,  in  Clark  ».  The  Guardians  of  the 
Cuckfield  Union,  16  Jur.  686 ;  s.  c.  11  Eng.  L.  &  Eq.  442,  it  was  assumed  that 
the  matter  was  within  the  scope  of  the  coihpany's  charter. 

"  The  judgment  delivered  by  Lord  Campbell,  Ch.  J.,  for  this  court,  in  the 
Copper  Miners'  Company  v.  Fox,  16  Q.  B.  229 ;  s.  c.  3  Eng.  L.  &  Eq.  42(J, 
enunciated  the  principle.  The  principle  affirmed  by  this  series  of  cases  does 
not  conflict  with  the  two  leading  cases  in  the  Court  of  Exchequer,  which  were 
cases  of  municipal  corporations.  Neither  building,  which  was  the  matter  in  the 
Mayor  of  Ludlow  r.  Charlton,  6  M.  <&  W.  815,  nor  litigation,  which  was  the 
matter  in  Arnold  v.  The  Mayor  of  Poole,  4  Man.  &  Gr.  860,  was  incidental 
directly  to  the  purposes  for  which  the  corporations  of  those  towns  were  con- 
stituted. 

"  The  other  cases  to  which  I  adverted  were  corporations  for  trading  purposes 
and  it  is  difficult  to  reconcile  them.  In  Lamprell  v.  Tlie  Guardians  of  the  Bil- 
lericay  Union,  3  Exch.  283,  the  action  related  to  the  building  a  workhouse,  with 
•699 


§  143.  WHAT   CONTRACTS   MU8T  BE   UNDER  SEAL.  699 

•  under  the  seal  of  the  company,*  is  still  adhered  to  by  the  Eng- 
lish and  Irish  courts.     And  to  this  extent  the  rule  may  not  be 

which  the  defendants  were,  as  a  corporation,  connected.  Diggle  v.  The  London 
&  Blackwall  Railw.,  5  Exch.  442,  is  that  which  to  the  greatest  degree  conflicts, 
unless  it  can  be  distinguished  or  explained  on  the  ground  that  it  was  a  unique 
contract ;  if  it  cannot,  I  do  not  agree  to  it ;  and  in  this  conflict  of  autliorities  I 
adhere  to  those  who  oppose  it. 

'*  The  notion  that  a  set  of  contracts  shall,  have  their  validity  depending  on  the 
frequency  and  insignificancy  of  the  subject-matter  is  of  such  extreme  pemicious- 
ness.  that  I  do  not  tln'nk  that  it  can  be  adhered  to,  and  must  be  considered  as  ap- 
plicable only  to  municipal  corporations.  It  has  been  so  held  as  to  contracts  for 
servants,  but  I  do  not  think  that  it  was  meant  to  be  said  that  the  contract  was 
valid  if  the  matter  was  of  small  importance,  and  invalid  if  the  matter  was  of  great 
importance ;  and  indeed,  in  the  case  of  trading  companies,  which  it  is  allowed 
may  draw  and  accept  bills  of  exchange  not  under  seal,  it  is  obvious  that  insig- 
nificancy is  no  element ;  neither  is  the  frequency  or  rarity  of  the  contract  an 
element.  The  nature  of  the  contract  and  the  subject-matter  of  it  must  be  the 
principle  which  governs  the  question  whether  it  is  valid,  though  not  under  seal. 
It  would  be  pernicious  to  the  law  of  the  country,  that  under  the  semblance  of  a 
contract  parties  should  obtain  goods  or  services,  and  not  be  compellable  to  pay 
for  them.  The  Court  of  Exchequer  had  an  opinion  that  it  would  be  important 
that  the  rule  should  be  certain  ;  but  their  resort  to  the  rule,  that  the  contract  in 
all  cases,  with  the  above-mentioned  exceptions,  should  be  under  seal,  cannot  be 
acted  upon." 

Crompton,  J.  "  I  concur  in  the  principle  now  adopted  by  my  brothers  Wight- 
man  and  Erie.  It  is  desirable  that  in  the  case  of  trading  corporations  there 
should  be  a  relaxation  of  the  rule,  that  the  contract  of  corporations  should  be 
under  seal,  where  the  contract  is  for  the  purpose  of  carrying  on  their  trade. 
That  principle  was  supported  in  The  Copper  Miners  Company  v.  Fox,  16  Q.  B. 
229 ;  8.  c.  3  Eng.  L.  &  Eq.  420,  and  Clark  ».  The  Guardians  of  the  Cuckfield 
Union,  16  Jur.  686;  8.  c.  11  Eng.  L.  &  Eq.  442;  and  it  is  an  important  prin- 
ciple, and  may  be  the  governing  principle  in  these  cases ;  and  but  for  the  two 
cases  in  the  Court  of  Exchequer,  I  should  think  that  the  appointment  of  the 
plaintiff  in  this  case  did  not  require  a  seal.  I  cannot,  however,  distinguish  this 
from  Lamprell  r.  The  Guardians  of  the  Billericay  Union,  3  Exch.  283,  and 
Diggle  r.  The  London  &  Blackwall  Railw.  Company,  5  Exch.  442 ;  and  if  the 
judgment  of  the  court  depended  upon  me,  I  might  defer  to  them,  at  the  same 
time  wishing  the  other  principle  to  prevail.  I  cannot  disguise  from  myself  that 
we  are  deciding  against  the  cases  in  the  Court  of  Exchequer,  and  the  rule  which 
that  court  adopted.  But  I  agree  with  what  my  brothers  have  said ;  and  I  will 
add,  that  those  cases  created  considerable  surprise  at  the  time." 

And  in  a  still  more  recent  case.  Renter  v.  The  Electric  Telegraph  Co.  6  El. 
&  Bl.  346  (May,  1856),  in  the  Court  of  Queen's  Bench,  the  defendants  had 
made  a  contract,  under  their  corporate  seal,  with  the  plaintiff,  to  transmit  all  his 


*  McArdle  v.  Irish  Iodine  Co.,  15  Ir.  Com.  Law,  146. 

*600 


600  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

•objectionable.  But  there  are  many  American  cases,  where  the 
construction  in  favor  of  the  responsibility  of  the  company  for  the 

messages,  and  all  he  could  collect,  for  a  commission  not  exceeding  £500,  or  less 
than  £300  per  annum,  and  while  this  contract  was  in  existence,  the  chairman  of 
the  company  entered  into  a  parol  agreement  with  the  plaintiff,  to  pay  him  at  the 
increased  rate  of  £50  per  cent,  in  consideration  of  the  plaintiff's  further 
services  in  collecting  public  intelligence  and  sending  it  by  the  company's 
telegraph.  These  additional  services  were  found  to  be  beneficial  to  the  com- 
pany, and  this  agreement  was  entered  upon  the  minutes  of  the  company,  and  the 
plaintiff  had  received  £300  for  services  in  pursuance  of  it. 

The  deed  of  settlement  provided,  that  all  contracts,  where  the  consideration 
exceeds  £50,  should  be  signed  by  three  directors.  It  was  held,  that  the  parol 
contract  having  been  acted  upon,  and  ratified  by  the  company,  was  binding  upon 
them.  De  Grave  v.  The  Mayor  of  Monmouth,  is  a  case  of  ratification,  4  C.  & 
P.  111. 

And  in  Bill  ».  The  Darenth  Valley  Railw.,  1  H.  &  N.  305 ;  s.  c,  37  Eng.  L. 
&  Eq.  539,  the  Court  of  Exchequer  held,  that  one  who  had  served  the  com- 
pany, as  secretary,  might  recover  compensation  for  his  services,  although  the  re- 
muneration to  be  paid  him  had  not  been  fixed,  at  a  general  meeting  of  the 
company,  as  required  by  the  English  statute.  That  was  held  to  determine  the 
duty  of  the  directors  towards  the  company,  and  not  to  limit  the  liability  of  the 
company  to  third  parties,  which  is  the  view  taken  of  the  subject  here.  Noyes  v. 
Rut.  &  Burling.  Railw.,  27  Vt.  110-113;  ante,  §  136,  n.  5. 

But  it  has  been  held,  that  if  a  corporation  contract  through  an  agent,  who  at- 
taches a  seal  to  his  execution  of  the  contract  on  their  behalf,  it  thereby  becomes 
the  deed  of  the  company,  although  the  seal  was  not  their  common  seal,  and  an 
action  of  assumpsit  cannot  be  maintained  upon  it.  Porter  v.  Androscoggin  & 
Kennebec  Railw.,  37  Maine,  349.  But  it  must  be  executed  in  the  name  of  the 
company.     Sherman  v.  New  York  Central  Railw.,  22  Barb.  239. 

If,  in  an  action  of  assumpsit,  upon  a  contract,  purporting  to  be  executed  by  a 
railway  company,  the  company  claim  that  it  was  executed  under  their  seal,  and 
that  therefore  an  action  of  assumpsit  will  not  lie  upon  it,  and  prevail,  upon  this 
ground,  they  are  estopped  to  deny,  in  a  subsequent  action  of  covenant,  upon 
the  same  contract,  that  the  seal  attached  to  the  contract  is  the  seal  of  the  com- 
pany. Philadelphia,  Wilmington  &  Baltimore  Railw.  v.  Howard,  13  Howard, 
307. 

But  the  English  courts  do  not  hold  the  corporation  absolutely  bound  by  con- 
tracts under  their  common  seal,  thus  reducing  the  question  to  one  of  authority, 
in  fact,  to  enter  into  the  contract.  Shrewsbury  &  Birmingham  Railw.  v.  London 
&  N.  W.  Railw.,  6  Ho.  Lds.  113. 

In  The  London  Docks  Co.  v.  Sinnott,  8  El.  &  Bl.  847  (Nov.  1857),  the 
Court  of  King's  Bench  maintain  the  general  rule  that  "  corporations  aggregate 
can  only  be  bound  by  contracts  under  the  seal  of  the  corporation."  Lord  Camp- 
hell,  Ch.  J.,  in  giving  judgment,  enumerates  the  following  exceptions  to  the 
general  rule,  mercantile  contracts,  contracts  with  customers,  and  such  as  do  not 
admit  of  being  executed  under  seal,  as  bills  of  exchange.  But  in  some  English 
cases,  decided  since  the  publication  of  the  second  edition  of  this  work,  it  seems 
•601 


§  143.  WHAT  CONTRACTS  MUST  BE   UNDER   SEAL.  601 

•  act  of  the  directors,  even  in  execnting  a  contract  under  seal, 
without  using  the  specific  seal  of  the  cor|)oration,  is  more  forci- 
ble, the  directors  for  the  time  being  held  to  have  adopted  the 
seal  used  as  the  corporate  seal,  the  same  as  any  number  of  nat- 
ural persons  may  adopt  the  same  seal.  But  this  latitude  of  con- 
struction in  regard  to  the  seal  of  a  corporation  is  common  in  this 

*  country,  it  being  generally  held  indispensable  to  bind  the  com- 
pany by  deed  that  their  corporate  seal  should  be  used. 

^.  There  has  been  considerable  controversy,  first  and  last,  as 
to  what,  precisely,  amounted  to  a  seal.  The  generally  received 
opinion  upon  the  subject  seems  now  to  be,  that  a  mere  scroll  or 
engraved  likeness  of  the  device  of  a  seal  will  not  answer  the  de- 
mands of  the  law.^  It  must  be  the  result  of  the  use  of  some 
adhesive  or  impressible  material.  It  was  at  one  time  restricted 
to  the  use  of  wax,  or  some  similar  material.  But  it  seems  now 
to  be  regarded  as  sufficient,  in  the  case  of  a  corporation,  if  the 
impression  is  stamped  into  the  substance  of  the  paper  on  which 
the  seal  is  used.^  There  is  a  great  deal  of  curious  learning  on 
the  subject,  much  of  which  will  be  found  in  a  carefully  prepared 
article  upon  the  subject,  lately  published.^ 

to  be  conceded  that  corporations  may  be  as  much  bound  by  the  contracts  of 
their  agents  as  natural  persons.  Thus  in  Wilson  r.  The  West  Hartlepool  Railw. 
Co.,  34  Beav.  187 ;  s.  c,  10  Jur.  N.  S.  1064,  it  was  held  that  when  a  company, 
through  their  directors,  hold  out  to  the  world  that  a  person  is  their  agent  for  a  par- 
ticular purpose,  they  cannot  afterwards  dispute  acts  done  by  him,  within  the  scope 
of  such  countenanced  agency.  And  accordingly  where  the  general  manager  of  a 
railway  company  had  in  several  instances  entered  into  contracts  for  the  sale  of  the 
company's  lands,  which  contracts  had  been  adopted  by  the  company,  and  he 
entered  into  a  contract  with  the  plaintiff  for  the  sale  to  him  of  a  portion  of  their 
land,  and  in  pursuance  of  the  terms  of  the  contract  the  company's  servants  laid 
down  a  branch  line  of  railway,  and  the  plaintiff  removed  machinery  and  other 
effects  to  the  land,  and  no  act  was  done  by  the  company  to  lead  the  plaintiff  to 
believe  that  the  contract  bad  been  entered  into  without  authority ;  but  they 
subsequently  repudiated  the  authority  of  the  manager  and  refused  to  convey 
the  land  to  the  plaintiff,  upon  bill  for  specific  performance  ;  it  was  held  that  the 
case  fell  within  the  principle  of  the  London  &  Birmingham  Railw.  Co.  v.  Win- 
ter, Cr.  &  Ph.  67,  and  specific  perfonnance  was  decreed. 

»  Bates  r.  Boston  &  N.  Y.  Central  liailw.,  10  Allen,  261. 

•  Hendee  v.  Pinkerton,  14  Allen,  381. 

'  1  Am,  Law  Review,  649. 

•  602,  603 


602  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

SECTION  III. 
Duty  of  the  respective  Companies  to  Passengers  and  Others. 


1.  Company  bound  to  keep  road  safe.     Act 

of  other  companies  no  excuse. 

2.  Some  cases  hold  that  passenpers  can  only 


6.    This  rule  extends  to  railways,  where  per- 
sons are  rightfully  upon  them. 
n.  3.   Cases,  as  to  the  necessity  of  privity  of 


sue  the  company  carrying  them.  i  contract  existing,  reviewed. 

8.   Passenger  carriers  bound  to  make  landing-      7.    One  who  keeps  open  public  works  is  bound 
places  safe.  to  keep  them  safe  for  use. 


But  those  who  ride  upon  freight  trains,  by 
favor,  can  only  require  such  security  as 
is  usual  upon  stich  trains. 

Owners  of  all  property  bound  to  keep  it  in 
state,  not  to  expose  others  to  iryury. 


8.  Corporations  presumptively  responsible  to 
the  same  extent  as  natural  persons  in 
the  same  situation. 

9.  A  railway  company  drawing  the  cars  of  a 
connecting  road  over  its  oum  line  is  re- 
sponsible as  a  common  carrier. 

§  144.  1.  A  public  company,  like  a  canal  or  railway,  who  are 
allowed  to  take  tolls,  owe  a  duty  to  the  public  to  remove  all 
obstructions  in  the  canal  or  upon  the  railway,  although  not 
caused  by  themselves  or  their  servants,  but  by  those  who  are 
lawfully  in  the  use  of  the  canal  or  railway,  or  by  mere  stran- 
gers.^ Nor  can  a  railway  company  excuse  themselves  from  lia- 
bility for  injury  to  passengers  carried  over  any  part  of  their  road, 
by  showing  that  the  particular  neglect  was  that  of  a  servant  em- 
ployed and  paid  by  a  connecting  road  as  a  switchman  at  the 
junction  of  two  railways.^ 

*  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223;  and  Lancaster  Canal 
Co.  V.  Parnaby,  id.  230.     See  post,  §  145,  pi.  7,  8,  and  note. 

*  McElroy  v.  Nashua  &  Lowell  Railw.,  4  Cush.  400.  Shaia,  Ch.  J.,  here 
says:  "The  switch  in  question,  in  the  careless  and  negligent  management  of 
which  the  damage  occurred,  was  a  part  of  defendants'  road,  over  which  they 
must  necessarily  carry  all  their  passengers,  and  although  provided  for,  and 
attended  by  a  servant  of  the  Concord  company,  at  their  expense,  yet  it  was  still 
a  part  of  the  Nashua  &  Lowell  Railroad,  and  it  was  within  the  scope  of  their 
duty  to  see  that  the  switch  was  rightly  constructed,  and  attended,  and  managed, 
before  they  were  justified  in  carrying  passengers  over  it."  So  also  where  a  train 
of  another  company  and  through  its  own  fault,  ran  into  a  train  standing  upon  its 
own  track,  but  over  which  the  other  company  had  running  power,  it  was  held 
the  company  owning  the  track  was  prima  facie  responsible  to  its  own  passengers 
thus  injured.  Ayles  r.  S.  E.  Railw.,  L.  R.  8  Exch.  146.  So  also  where  a 
company  grants  the  use  of  its  track  to  another  company  whereby  through  the 
fault  of  the  latter  company  its  own  passengers  are  injured,  the  first  company  is 
responsible.  Railway  Co.  v.  Barron,  5  "Wallace,  90.  And  a  railway  passenger 
carrier  is  responsible  for  the  sufficiency  of  a  carriage  which  it  borrows  and  uses. 


§  144.   DUTY  OP  COMPANIES  TO  PASSENGERS  AND  OTHERS.     603 

2.  But  it  was  held  that  a  passenger,  who  suffered  an  injury 
in  attempting  to  get  upon  the  cars  of  one  company  while  using 
•  the  road  of  another  company,  hy  contract  with  such  company, 
through  a  defect  in  the  construction  of  the  road  of  the  latter 
company,  could  not  maintain  an  action  against  them,  there  be- 
ing no  privity  of  contract  between  the  plaintiff  and  such  com- 
pany ;  the  remedy  being  in  such  case  against  the  company  who 
were  carrying  the  plaintiff  as  a  passenger.^ 

to  the  same  extent  as  for  its  own.  Jetter  v.  N.  Y.  &  H.  Railw.,  39  N.  T.  (2 
Keyes)  164. 

»  Murch  t>.  The  Concord  Railw.,  9  Foster,  9 ;  Winterbottom  r.  Wright,  10 
M.  &  W.  109.  But  a  railway  company  owe  a  public  duty,  independent  of  all 
privity  of  contract,  to  keep  their  public  works  in  such  a  state  of  repair,  and  so 
watched  and  tended  as  to  insure  the  safety  of  all  who  are  lawfully  upon  them, 
either  by  their  direct  permission  or  mediately  through  contract  with  other 
parties.  Sawj-er  ».  Rutland  &  Bur.  Railw.,  27  Vt.  377.  This  is  here  thus 
stated  by  Isham,  J.:  "That  duty  is  imposed  upon  the  defendants  at  common 
law,  and  it  arises  not  from  any  contract  of  the  parties,  but  from  the  acceptance 
of  their  charter,  and  from  the  character  of  the  services  they  have  assumed  to 
perform.  The  obligation  to  perform  that  duty  is  coextensive  with  the  lawful 
use  of  the  road,  and  is  required  as  a  matter  of  public  security  and  safety." 
The  same  principle  is  maintained  in  Smith  v.  New  York  &  Harlem  Railw.  Co., 
19  N.  Y.  127,  where  it  was  decided  that  a  switch-tender,  employed  by  a  rail- 
way company  on  a  portion  of  its  road  upon  which  it  permits  another  company 
to  run  trains,  is  not  a  servant  of  the  latter ;  and  an  engineer  of  the  latter, 
injured  by  the  negligence  of  such  switch-tender,  may  maintain  an  action  against 
the  company  employing  him.  But  where  animals  were  killed  by  the  train  of  one 
company,  while  rightfully  upon  the  track  of  another  company,  it  was  held  that 
the  company  owning  the  road  was  responsible  for  the  damage.  Ind.  &  Madison 
Railw.  V.  Solomon,  23  Ind.  534.  So  an  apothecary,  who  sold  a  deadly  poison 
labelled  as  a  harmless  medicine,  was  held  directly  liable  to  all  persons  injured 
thereby,  in  consequence  of  the  false  label,  without  fault  on  their  part.  The 
liability  of  the  apothecary  arises,  not  out  of  any  contract  or  privity  between  him 
and  the  person  injured,  but  out  of  the  duty  which  the  law  imposes  upon  all,  to 
avoid  acts  in  their  nature  dangerous  to  the  lives  of  others.  He  is  liable,  there- 
fore, though  the  poisonous  drug,  with  such  label,  may  have  passed  through  many 
intermediate  sales  before  it  reaches  the  hands  of  the  person  injured,  upon  the 
same  principle  that  one  who  suffers  a  dangerous  animal  to  go  at  large,  is  respon- 
sible for  the  consequences.     Thomas  v.  Winchester,  2  Seld.  397.  ■ 

In  Toomey  ».  London  Br.  &  South  C.  Railw.,  3  C.  B.  (N.  S.)  146,  the 
plaintiff  mistook  a  door  at  a  railway  station,  and  passing  through  it,  instead  of 
another,  fell  down  a  flight  of  steps  and  was  hurt.  There  was  a  light  over  the 
door  which  he  intended  to  pass  through,  and  a  printed  notice  showing  the  pur- 
pose of  it.  There  was  also  an  inscription  over  the  other,  but  no  light.  The 
defendant  could  not  read.  There  was  no  evidence  that  the  steps  were  more  than 
ordinarily  dangerous.  Held  that  the  company  were  not  liable.  But  a  railway 
*  604 


604  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

*  3.  And  while  the  cases  recognize  the  duty  in  such  companies 
as  carry  passengers,  either  upon  their  own  road  or  that  of  other 
companies,  by  permission  or  lease,  to  make  the  approaches  to  such 
road  safe,  at  all  points  where  freight  or  passengers  are  usually 
received,  this  duty  does  not  exist  in  regard  to  a  passenger  who, 
out  of  special  favor,  is  allowed  to  get  upon  the  train  at  an  unusual 
place  for  receiving  passengers.^  And  the  same  rule  has  been  ex- 
tended to  the  owners  of  docks,  who  keep  up  the  gangways  to 
ships  while  remaining  at  their  docks  ;  and  where  they  were  left  un- 
safe by  the  negligence  of  the  servants  having  charge  of  the  same, 
and  one  who  visited  a  ship  in  the  dock  on  business,  by  invitation 
of  the  officer,  and  was  injured  by  the  defect  in  the  gangway  with- 
out his  own  fault,  it  was  held  the  dock  owners  were  responsible.* 

4.  And  one  who,  by  favor,  is  allowed  to  travel  upon  a  freight- 
car,  contrary  to  the  usual  .custom  of  the  company,  is  bound  to  be 
satisfied  with  such  facilities  and  accommodations  as  usually  exist 
upon  freight  trains,  as  railway  companies  are  not  to  be  regarded 
as  common  carriers  of  passengers  upon  their  freight  trains,  unless 
they  make  it  an  habitual  business.^ 

5.  It  has  been  held  that  natural  persons,  who  assume  no  pub- 
company  is  bound  to  fence  a  station  so  that  the  public  may  not  be  misled,  by 
seeing  a  place  unfenced,  into  injuring  themselves  by  passing  that  way,  being  the 
shortest  to  the  station.  Where  a  passenger,  in  waiting  for  a  train,  had  gone  to 
a  public  house  for  refreshments,  the  porter  showing  him  the  way  with  his  lantern, 
and  hearing  the  bell  ring  started  out  for  the  station,  and  mistaking  the  light  of 
the  engine  for  that  of  the  station  crossed  an  open  space  direct,  and  was  injured 
by  falling  into  a  hole  three  feet  deep,  it  was  held  the  company  were  liable.  Bur- 
gess V.  Great  Western  Railw.,  6  C.  B.  N.  S.  923. 

Nor  is  a  railway  company  liable  for  an  injury  through  the  defect  of  a  crane 
which  they  had  furnished  to  enable  the  consignee  of  heavy  goods  to  unlade 
them  from  the  cars,  although  such  crane  was  known  to  them  to  be  inadequate 
for  the  use  for  which  it  was  furnished,  the  partj'  injured  having  been  employed 
to  assist  the  consignee,  and  thereby  lost  his  life.  The  case  is  put  upon  the 
ground  of  want  of  privity,  it  being  admitted  that  the  company  would,  in  such 
case,  have  been  liable  to  the  party  to  whom  they  furnished  the  crane,  if  he  or 
his  ordinary  servants  had  sustained  injury  in  its  prudent  and  lawful  use.  But 
the  party  here  was  called  in  for  the  occasion.  Blakemore  v.  The  Bristol  &  Exe- 
ter Railw.,  8  El.  &  Bl.  1035.  It  seems  to  us  the  principle  of  want  of  privity 
is  here  misapplied.  This  is  a  clear  case  of  tort  and  not  of  contract,  and  the 
party  injured,  although  called  in  for  the  occasion,  was  pro  hac  vice  a  servant  of 
the  borrower,  and  it  was  the  same  as  if  the  borrower  himself  had  been  injured. 
The  furnishing  the  instrument  had  express  and  direct  reference  to  its  use  by  the 
consignee  and  his  servants,  extraordinary  as  well  as  ordinary. 

*  Smith  V.  London  &  St.  Katherine's  Dock  Co.,  Law  Rep.  3  C.  P.  326. 

*  605 


§  144.   DUTY  OP  COMPANIES  TO  PASSENGERS  AND  OTHERS.     605 

lie  duties,  are  liable,  if  they  suffer  their  property  to  remain  in  a 
dangerous  condition ;  as  that  the  occupier  of  land  is  bound  to 
fence  off  a  hole  or  area  upon  it  which  adjoins  or  is  so  close  to  a 
highway  that  it  may  be  dangerous  to  passers-by  if  left  unguarded.* 

*  6.  The  same  rule  has  ofton  been  extended  to  turnpike  roads* 
and  to  plank  roads,  where  the  statute  made  no  provision  for  the 
liability  of  the  company."  And  the  same  rule  has  been  extended 
generally  to  railway  companies  in  this  country,  without  question, 
80  far  as  persons  are  rightfully  in  the  use  of  the  same.*  It  was 
held  that  the  owner  of  a  car  which  was  in  the  use  of  another 
party,  upon  a  railway,  by  contract  between  him  and  the  company, 
and  suffered  an  injury  by  reason  of  the  bad  state  of  the  railway, 
might  maintain  an  action  against  the  company.  * 

7.  This  principle,  or  an  extension  of  it,  has  been  a  good  deal 
discussed  in  a  case  in  the  House  of  Lords.^      The  *  plaintiffs, 

»  Barnes  v.  Ward,  2  Carr.  &  K.  661. 

*  Randall  v.  Cheshire  Turnpike  Co.,  6  N.  H.  147;  Townshend  v.  Susquehan- 
nab  T.  Co.,  6  Johns.  90. 

'  Davis  V.  Lamoille  County  Plank  Road,  27  Vt.  602. 

In  the  case  of  Gibbs  ».  Trustees  of  the  Liverpool  Docks,  3  H.  &  N.  164 ; 
8.  c.  31  Law  Times,  22,  it  was  held,  in  the  Exchequer  Chamber,  reversing  the 
judgment  of  the  Court  of  Exchequer,  that  it  is  the  duty  of  those  receiving  tolls, 
whether  as  trustees  or  otherwise,  not  to  allow  a  dock  to  remain  open  for  public 
use,  when  they  know  that  it  is  in  such  a  state  that  it  cannot  be  used  without  dan- 
ger, citing  Parnaby  v.  Lancaster  Canal  Co.,  11  Ad.  &  Ell.  223,  and  distin- 
guishing the  case  from  Metcalfe  v.  Hetherington,  11  Exch.  257.  But  it  seems 
the  party  is  never  liable  in  such  case,  unless  he  knew  or  might  have  known  of 
the  defect  but  for  his  own  neglect  of  duty.  McGinity  ».  Mayor  of  New  York, 
6  Duer,  674.     See  post,  n.  9. 

*  Cumberland  Valley  Railw.  v.  Hughs,  11  Penn.  St.  141. 

'  The  Mersey  Docks  &  Harbor  Board  v.  Penhallow,  Law  Rep.  1  Ho.  Lds.  93 ; 
8.  c.  12  Jur.  N.  S.  671.  The  recent  cases  bearing  upon  the  general  question  of  the 
responsibility  of  one  party  for  negligence  in  his  own  business,  which  incidentally 
operates  to  produce  injury  to  another,  and  which  are  here  discussed  by  court  or 
counsel,  are  the  following :  Metcalfe  v.  Hetherington,  5  H.  &  N.  719 ;  Coe  P.Wise, 
10  Jur.  N.  S.  1019 ;  HoUiday  r.  St  Leonard's,  Shoreditch,  8  Jur.  N.  S.  79 ;  8.  c. 
11 C.  B.  N.  S.  192  ;  Pickard  r.  Smith,  10  C.  B.  N.  S.  470 ;  Southampton  &  L  Bridge 
Co.  V.  The  Local  Board  of  Health,  8  Ellis  &  Bl.  801 ;  Ruck  v.  Williams,  3  H. 
&  N.  308 ;  Whitehouse  v.  Fellowes,  10  C.  B.  N.  S.  765 ;  Brownlow  ».  The 
Metropolitan  Board,  8  Jur.  N.  S.  891 ;  8.  c.  13  C.  B.  N.  S.  768 ;  Jones  p.  The 
Mersey  Board,  11  Jur.  N.'S.  746. 

There  is  obviously  considerable  conflict  in  the  decisions  bearing  upon  the 
general  question  involved.  The  result  of  the  discussion  in  the  latest  case  before 
the  court  of  last  resort  in  England,  supra,  seems  to  be,  that  the  statute  is  the  only 

♦  606,  607 


606  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

a  corporation,  were  empowered  by  act  of  parliament  to  make 
and  maintain  docks  for  the  use  of  the  public,  and  to  take  tolls 
from  persons  using  them.  The  corporation  did  not,  nor  did  ita 
individual  members,  derive  any  emolument  from  the  tolls,  but  was 
bound  to  apply  them  in  maintaining  the  docks,  and  in  paying  a 
debt  contracted  in  making  them.  The  corporation  had  the  usual 
powers  of  appointing  water-bailiffs,  harbor-masters,  and  servants, 
by  whose  hands  the  duties  of  superintendence  were  carried  out. 
A  ship,  in  entering  one  of  the  docks,  struck  against  a  bank  of 
mud  left  at  its  entrance,  of  the  existence  of  which  the  corporation 
was  either  aware,  or  negligently  ignorant.  The  ship  and  cargo 
being  both  injured,  separate  actions  were  brought  by  the  respective 
owners.  It  was  held,  affirming  the  judgment  of  the  Exchequer 
Chamber,^''  that  as  long  as  the  docks  were  open  for  the  use  of  the 
public,  the  corporation  were  bound,  whether  they  received  the  tolls 
for  private  or  fiduciary  purposes,  to  take  care  that  the  docks  were 
navigable  without  danger,  and  consequently  that  they  were  liable 
in  damages. 

8.  It  was  here  held,  that  in  construing  statutes  creating  bodies 
corporate,  such  as  the  plaintiffs,  the  legislature  must  be  consid- 
ered, unless  the  contrary  appears,  to  intend  that  the  corporate 
body  shall  have  the  same  liabilities  and  duties  as  are  imposed  by 
the  general  law  upon  private  persons  doing  the  same  things. 

9.  A  railway  company  which  for  an  agreed  compensation  re- 
ceives and  draws  over  its  own  line  the  cars  of  a  connecting  road 

and  sufficient  warrant  for  creating  any  such  pablic  work  as  a  railway,  harbor,  or 
canal.  But  the  responsibility  of  those  to  whom  the  power  is  given,  depends 
upon  the  provisions  and  construction  of  the  statute;  that  it  is  unimportant 
whether  the  grantee  of  the  power  be  a  natural  or  corporate  person,  the  respon- 
sibility in  either  case  will  be  the  same ;  that  in  the  absence  of  all  special  statutory 
pro^nsion  to  the  contrani*,  the  builders  of  such  works,  and  those  who  operate  the 
same  for  their  own  benefit,  or  that  of  others,  are  bound  to  see  that  they  are  con- 
structed with  reasonable  care  and  skill,  and  maintained  in  the  same  manner.  It 
was  at  one  time  supposed  the  grantee  of  such  a  {>ower  might  excuse  himself  from 
all  responsibility  by  showing  good  faith  and  diligence  in  the  discharge  of  Uie 
public  duty  imposed  by  the  grant  of  the  power.  Sutton  r.  Clarke,  6  Taunt.  29, 
where  Chief  Justice  Gibbs  said :  "  He  has  done  all  that  was  incumbent  on  him, 
having  used  his  best  skill  and  diligence.'"  But  it  has  since  been  held  that  this  is 
not  enough,  and  that  the  grantees  of  such  a  power  are  bound  to  conduct  them- 
selves in  a  skilful  manner,  and  to  do  all  that  any  skilful  person  could  reasonably 
be  required  to  do  in  such  a  case.  Jones  r.  Bird,  5  B.  &  A.  837. 
•»  3  H.  &  Norm.  164,  4  Jur.  N.  S.  636. 


§  145.  POWEBS   AND   DUTIES   OP   LESSEES.  607 

is  responsible,  as  a  common  carrier,  for  the  safe  delivery  of  the 
passengers  and  freight,  the  same  as  in  other  cases.  And  where  by 
an  agreement  between  the  two  companies,  the  latter  is  to  indemnify 
the  former  from  all  claims  for  damages  in  consequence  of  the 
transportation,  unless  caused  by  the  default  of  the  transporting 
company,  or  from  some  defect  in  its  road,  this  will  leave  the  trans- 
porting company  responsible,  both  under  the  contract,  and  in- 
dependently of  it,  upon  general  principles,  for  an  injury  caused  by 
a  defect  in  its  track,  although  without  its  fault." 

•SECTION   IV. 
Extent  of  the  Powers  and  Duties  of  Lessees  of  Railways. 

1.   Statement  of  the  points  in  an  important  |  2.   Lessees  of  railways  liable  for  their  own 
English  case.  \  acts,  and  for  many  acts  of  lessors. 

§  145.  1.  A  very  elaborate  and  important  case  upon  the  rela- 
tive rights  and  duties  of  the  lessors  and  lessees  of  railways  came 
before  the  court  of  C.  B.  in  June,  1851,  and  the  Exchequer 
Chamber  in  January,  1853.  The  importance  and  difficulty  of 
the  subject,  and  the  few  cases  upon  it  which  have  yet  arisen, 
will  justify  an  extended  notice  of  the  points  decided  in  the 
court  of  last  resort.^  In  1836  a  company  (afterwards  called  the 
West  London  Railway  Company)  was  incorporated  by  act  of  Parlia- 
ment for  the  making  of  a  railway  from  the  Kensington  Canal  to 
join  the  London  and  Birmingham  (afterwards  called  the  London 
and  Northwestern)  and  the  Great  Western  Railways  at  a  place 
called  Holsdeu  Green,  and  certain  duties  were  by  the  act  cast 
upon  the  company ;  and,  amongst  other  things,  it  was  provided 
that,  if  the  railway  should  bo  abandoned,  or  should,  after  its  com- 
pletion, cease  for  the  space  of  three  years  to  be  used  as  a  railway, 
the  land  taken  by  the  company  for  the  purposes  of  the  act  should 
revert  to  the  owners  of  the  adjoining  land. 

In  February,  1837,  the  West  London  Railway  Company  entered 
into  an  agreement  with  the  Great  Western  Railway  Company, 
under  which  the  last-mentioned  company  bound  themselves  to 
stop  certain  of  their  trains  at  a  point  where  their  railway  inter- 

"  Vermont  &  Mass.  Railw.  p.  Fitchburgh  RaHw.,  14  Allen  462. 
•  The  West  London  Railw.  c.  The  London  &  N.  W.  Railw.,  11  C.  B.  827; 
8.  c,  18  Eug.  L.  &  Eq.  481. 

•  608 


608  ARRANGEMENTS  BETWEEN  COMPANIES.  CH.  XXII. 

sected  the  West  London  Railway,  for  the  purpose  of  transferring 
passengers  and  goods  from  one  railway  to  the  otlier,  and  to  stop 
their  trains  for  the  purpose  of  meeting  corresponding  trains  of 
that  company,  in  the  manner  particularly  detailed  in  the  deed. 

In  1840,  another  act,  3  &  4  Vict.  c.  105,  passed,  giving  further 
powers  to  the  West  London  Railway  Company ;  the  thirty-fourth 
section,  reciting  the  agreement  of  February,  1837,  regulated  the 
*  mode  of  crossing,  until  the  plaintiffs'  railway  should  be  com- 
pleted ;  the  thirty-sixth  section  saved  the  plaintiffs'  right  under  that 
agreement ;  and  the  thirty-seventh  section  provided,  that  if  the 
plaintiffs'  line  was  abandoned,  or  ceased  to  be  used  as  arailway  for 
three  years  after  its  completion,  then,  on  payment  or  tender  to 
them  by  the  Great  Western  Railway  Company  of  the  purchase- 
money  of  the  piece  of  land  where  the  railways  crossed,  the  said 
land  should  vest  in  the  Great  Western  Railway  Company. 

By  a  subsequent  act  (8  &  9  Yict.  c.  156),  reciting  that  "  it  had 
been  found  that  the  said  West  London  Railway  [which  it  appeared 
in  evidence  had  been  worked  with  passenger  trains  as  well  as  with 
goods  trains]  could  not  be  worked,  as  a  separate  and  independent 
undertaking,  with  advantage  to  the  proprietors  thereof,  but  that 
the  same  might  be  advantageously  worked  and  used  in  connection 
with  the  said  London  and  Birmingham  Railway  and  the  said 
Great  Western  Railway,  or  either  of  them,  by  both  or  either  of 
the  companies  to  whom  the  said  last-mentioned  railways  belonged ; 
that  the  West  London  Railway  Company  were  therefore  desirous 
of  letting  the  said  railway  on  lease  to  the  London  and  Birming- 
ham Railway  Company ;  and  that  the  last-mentioned  company 
were  willing  to  accept  such  lease,  subject  to  certain  terms  and 
conditions  which  had  been  mutually  agreed  on  between  the  said 
two  companies,"  —  the  West  London  Railway  Company  was  au- 
thorized to  lease  to  the  London  and  Northwestern  Railway  Com- 
pany their  railway,  and  all  their  rights,  powers,  and  privileges  in 
relation  thereto,  —  subject  to  the  provisions  of  the  act,  and  to  the 
performance  of  the  conditions  to  be  mentioned  in  such  lease. 

By  the  lease,  which  was  afterwards  executed  in  pursuance  of 
this  act,  the  London  and  Northwestern  Railway  Company  cove- 
nanted, amongst  other  things,  that  they  would  "  at  their  own 
expense,  during  the  continuance  of  the  lease,  efficiently  work  and 
repair  the  railway  and  works  thereby  demised,, and  indemnify  the 
West  London  Railway  Company  against  all  liabilities,  loss,  charges, 
*  609 


§  145.  POWERS   AND   DUTIES  OP   LESSEES.  609 

and  expenses,  claims  and  demands,  whether  incurred  or  sustained 
in  consequence  of  any  want  of  repair,  or  in  consequence  of  not 
working,  or  in  any  manner  connected  with  *  the  working  of  the 
same  railway  or  works ;  but  the  West  London  Railway  Company 
shall  have  no  control  whatever  over  the  working  or  management 
by  the  London  and  Birmingham  (Northwestern)  Railway  Com- 
pany of  the  West  London  Railway  or  works.     It  was  held :  — 

That  in  order  to  perform  their  covenant  to  work  efficiently,  the 
defendants  were  not  bound  under  all  circumstances  to  work  the 
line  for  passenger  traffic;  but  that,  if  as  much  gross  proceeds 
could  bo  obtained  by  efficiently  working  the  railway  for  goods 
only,  as  for  passengers  only,  or  for  both  passengers  and  goods, 
the  covenant  was  well  performed,  —  Flatty  B.,  Martin,  B.,  not 
concurring. 

That  the  agreement  of  February,  1837,  with  the  Great  West- 
ern Railway  Company,  was,  by  virtue  of  the  provisions  in  the 
leasing  act,  and  the  lease  itself,  transferred  to  the  defendants, 
the  lessees ;  and,  consequently,  that  they  had  power  to  compel  the 
Great  Western  Railway  Company  to  stop  trains  on  their  line, 
pursuant  to  the  provisions  of  that  agreement.  That,  although 
the  defendants  had  power  to  stop  the  Great  Western  trains,  they 
were  not  bound  to  exercise  it,  necessarily,  as  a  part  of  the  efficient 
working  of  the  line  demised ;  and  that  they  were  not  bound  nec- 
essarily to  work  the  demised  line  in  connection  with  the  trains  on 
the  Great  Western  Railway. 

That  there  was  no  covenant  in  the  lease  to  bind  the  defendants 
to  work  the  demised  line  in  connection  with  either  or  both  their 
own  or  the  Great  Western  Railway ;  but  that  it  would  be  for  the 
jury  to  say  whether  or  not  they  could  practically  work  the  line  effi- 
ciently, without  some  connection  with  one  or  other  of  those  railways. 

That,  for  the  purpose  of  considering  the  liability  of  the  defend- 
ants, they  were  not  to  be  treated  by  the  jury  as  if  they  were  lessees 
of  a  separate  and  independent  line,  having  no  control  over  the 
other  two  railways ;  but  that  the  covenant  to  work  the  demised 
line  efficiently,  must  be  construed  with  a  reference  to  the  subject- 
matter,  and  the  character  of  the  defendants. 

That  the  obligation  of  the  defendants  under  their  covenant,  was 
not  limited,  as  decided  by  the  court  below,  to  the  indemnification 
of  the  plaintiffs  from  the  obligations  cast  upon  them  by  their  acts 
of  incorporation.     The  court  say,  in  substance :  — 

39  •  610 


610  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

*  If  this  railway  had  been  leased  to  a  simple  individual,  or  com- 
pany, without  any  connection  with  any  other  railway,  and  leased 
alone,  the  measure  of  efficient  working,  we  cannot  help  thinking, 
would  be  very  different  from  what  would  be  required  from  a 
company  whose  line  was  connected  with  it,  who  had  the  entire 
control  over  their  own  line,  and  were  armed  with  a  power  of 
adding  to  the  traffic  of  the  railway,  by  the  control  possessed  over 
another  line,  and  whose  capabilities  and  powers  in  this  respect 
were  reasons  which  disposed  parliament  to  permit  the  lease  to 
be  made  to  them. 

It  is  difficult,  indeed  almost  impossible,  to  define  the  precise 
nature  and  degree  of  efficient  working  which  such  a  company 
ought  to  apply,  under  this  covenant ;  not  so  difficult  to  say  that 
it  ought  to  be  different  and  greater  than  would  be  required  from 
a  company  or  an  individual  who  had  nothing  but  the  railway 
leased.  They  could  only  be  required  to  supply  convenient  ac- 
commodation and  attendance  for  the  receipt,  and  sufficient 
means  of  carriage,  of  such  goods  and  passengers  as  might  be 
offered  at  one  terminus,  or  any  intermediate  station,  to  be  carried 
to  the  other  terminus,  or  some  other  intermediate  station ;  and 
this,  however  small  the  gross  receipt  might  be. 

But  that  would  be  too  small  a  measure  of  efficient  working, 
in  the  case  of  these  defendants,  who  have  the  power  of  supply- 
ing more  goods  and  passengers  themselves  by  facilitating  the 
transit  of  both  from  Holsden  to  the  Kensington  Terminus,  or 
Great  Western  Station,  or  by  increased  facilities  for  receiving 
them  at  the  Kensington  Terminus,  by  arrangements  within  their 
power,  without  any  serious  injury  to  their  own  concern. 

They  are  certainly  not  bound  to  make  a  sacrifice  of  their  own 
concerns  for  the  purpose  of  efficiently  working  this  line  so  as  to 
produce  the  greatest  profit  to  the  plaintiffs  and  themselves. 

The  covenant  must  have  a  reasonable  construction  in  this 
respect.  But  they  are,  we  think,  bound  to  do  more  than  a  les- 
see of  merely  the  railway  in  question  would  do,  unconnected 
with  any  other. 

2.  It  seems  to  be  regarded  as  settled  that  the  persons  or  cor- 
poration who  come  into  the  use  of  a  railway  company's  powers 
and  privileges,  are  liable   for  their  own   acts  while   continuing 

*  such  use,  and  also  for  the  continuance  permissively  of  any  wrong 
which  had  been  perpetrated  by  such  company  upon  land-owners 

♦  611,  612 


I  146.  CONTRACTS  BETWEEN  DIFFERENT  COMPANIES.  611 

or  Others,  by  means  of  permanent  erections,  which  still  remain  in 
the  use  of  their  successors.^  Thus  it  has  been  held  that  the 
lessees  of  a  railway  are  liable  to  a  penalty,  under  the  statute, 
for  not  having  a  bell  upon  their  engines,  and  not  ringing  it,  as 
required  by  the  statute.^  But  the  lessees  of  a  railway  are  not 
liable  for  the  acts  of  the  servants  of  the  lessors.* 


SECTION   V. 
Contracts  between  different  Companies  regidaiing  the  Traffic, 

1.   Such  contract  generally  held  valid  and  I  2.   Arrangements  to  avoid  competition  valid, 
binding,  | 

§  146.  1.  It  seems  in  general  to  have  been  considered,  that 
contracts  between  different  connecting  companies,  with  a  bona 
fide  view  to  regulate  traffic,  in  a  reasonable  and  just  manner, 
were  legal  and  binding.^  But  when  it  is  considered  that  these 
*  companies  have  to  a  very  great  extent  a  monopoly  of  the  traffic 
and  travel  of  the  country,  the  power  to  regulate  fares  and  freight 
by  arrangement  between  the  different  companies  is  certainly  one 
very  susceptible  of  abuse.     But  there  is  ordinarily  very  little 

•  In  regard  to  the  construction  of  contracts  between  different  companies  for 
the  mutual  use  of  each  other's  line,  or  the  line  of  one  road  by  the  other,  tolls, 
&c.,  see  the  Lancashire  &  Yorkshire  Railw.  v.  The  East  L.  Railw.,  7  Exch.  126 ; 

8  Eng.  L.  &  Eq.  564 ;  s.  c.  reversed  in  Exchequer  Ch.,  9  Exch.  691 ;  26  Eng. 
L.  &  Eq.  466 ;  and  affirmed  H.  Lords,  5  Ho.  Lds.  792 ;  36  Eng.  L.  &  Eq.  34. 
It  was  held  in  a  late  Scotch  case,  on  appeal  in  the  House  of  Lords,  that  under  an 
act  of  parliament  requiring  one  company  to  accept  a  lease  of  and  operate  the 
other's  road,  so  soon  as  it  was  in  readiness,  the  lessees  were  bound  to  accept  any 
reasonable  portion  of  the  road,  so  soon  as  completed,  it  being  such  a  portion  as 
might  be  worked  with  advantage.  Edinburgh  &  G.  Railw.  v.  Stirling  &  D.  Railw., 
1  McQu.  Ho.  Lds.  790;  Brown  r.  The  Cayuga  &  Susquehanna  Railw.,  2  Ker- 
nan,  486.  '  Linfield  p.  Old  Colony  Railw.,  10  Cush.  662. 

*  Walford  on  Railways,  184,  citing  two  cases  not  reported. 

'  Shrewsbury  &  Birm.  Railw.  r.  London  &  N.  W.  Railw.,  17  Q.  B.  652 ;  8.  C. 

9  Eng.  L.  &  Eq.  894.  Lord  Campbell  says  here,  That  if  the  object  of  the  con- 
tract were  to  create  a  monopoly,  and  to  deprive  the  public  of  all  benefit  of  com- 
petition, it  might  be  illegal,  but  an  agreement  that  one  company  shall  not  interfere 
or  compete  with  the  other,  is  no  more  illegal  than  a  contract  by  which  one  trades- 
man or  mechanic  agrees  not  to  continue  his  business  in  a  particular  place.  Same 
case  in  Chancery,  before  Lord  Cottenham,  2  Mac.  &  Gordon,  324,  where  a  similar 
view  is  taken  of  the  legality  of  the  contract.  Lord  Langdale,  M.  R.,  in  Colman  v. 
The  Eastern  Counties  Railw.,  10  Beav.  1 ;  s.  c.  4  Railw.  C.  613. 

•618 


612  ARRANGEMENTS   BETWEEN   COMPANIES,  CH.  XXII. 

danger  that  they  will  willingly  incur  the  serious  reprobation  of 
public  opinion.  And  it  has  sometimes  been  doubted  whether 
contracts,  whereby  one  railway  company  seeks  to  assume  the 
entire  business  of  other  companies,  affording  them  a  guaranty  in 
regard  to  stock  and  profits,  or  either,  could  be  regarded  as  com- 
ing within  the  fair  interpretation  of  the  English  general  stat- 
utes, allowing  one  company  to  contract  for  running  upon  the 
track  of  other  companies,  for  tolls,  and  so  could  be  held  valid  by 
the  courts  of  that  country,  either  in  law  or  equity .^  But  some 
of  the  later  cases  seem  to  sustain  such  contracts.^ 

2.  There  is  no  principle  of  public  policy  which  renders  void 
a  traffic  arrangement  between  two  lines  of  railway  for  the  pur- 
pose of  avoiding  competition.  And  if  the  arrangement  embrace 
the  division  of  the  net  earnings  of  both  companies  in  certain 
definite  proportions,  the  court  will  not  interfere  upon  the  ground 
that  one  company  may  not  adventure  its  profits  upon  the  chances 
of  the  earnings  of  another  company.*  And  it  is  no  valid  objec- 
tion that  such  division  is  based  upon  the  experience  of  the  result 
of  past  traffic* 

SECTION   VI. 

What  is  requisite  to  constitute  a  perpetual  Contract  betiveen 
different  Railway  Companies. 

1.  Railway  connections  commonly  temporary,    I  ience  and  so  subject  to  legislative  con- 

2.  The  matter  is  one  mainly  of  public  conven-   \  trd. 

§  147.  1.  Where  in  the  charter  of  a  railway  company  a  right  is 
reserved  to  the  legislature  to  allow  other  railways  to  connect 
with  the  former,  upon  such  terms  as  shall  be  reasonable,  com- 
plying with  the  established  regulations  of  such  company  upon 
the  subject,  and  in  pursuance  of  such  reservation  a  junction  is 
made  by  a  second  railway  company  with  the  first,  which,  in  faith 
*  of  such  connection,  proceeds  to  make  expensive  and  permanent 
arrangements  for  the  accommodation  of  the  enlarged  business 
thus  brought  upon  its  track,  it  was  held,  that  this  imposed  no 

'  Simpson  v.  Denison,  10  Hare,  51 ;  s.  c.  13  Eng.  L.  &  Eq.  359, 
'  Ante,  §  142, 

*  Hare  v.  London  &  N,  W.  Railw.,  2  Johns.  &  H.  80;  s.  c.  7  Jur,  N.  S. 
1145 ;  post,  §  148, 
*614 


§148. 


CONTRACTS   ULTRA   VIRES. 


613 


obligation  upon  the  second  company  to  continue  this  connection 
permanently.  And  also  that  the  second  company  might  law- 
fully obtain  an  extension  of  their  own  road,  so  as  to  do  their 
own  business,  without  continuing  the  connection.^ 

2.  It  seems  that  ordinarily  a  mere  legislative  permission  to  rail- 
way companies  to  connect  their  lines  imposes  no  obligation  upon 
either  company  to  do  so.  And  if  that  were  to  be  so  regarded,  it  is 
certain  that  no  absolute  vested  right  to  insist  upon  the  per- 
manency of  such  connection  could  exist  in  either  company,  which 
it  would  not  be  competent  for  the  legislature  to  dissolve.  After 
the  connection  is  made,  it  is  optional  with  either  party  to  dis- 
continue it,  and  clearly  so  by  legislative  permission.  Even  after 
such  connection  is  made,  it  is  not  incumbent  upon  either  company 
to  continue  the  same  gauge,  or  if  so,  such  right  cannot  by  possi- 
bility exist  until  the  connection  is  made,  and  if,  before  that, 
either  company,  by  legislative  act,  is  relieved  from  all  obligation 
to  connect,  this  will  terminate  all  possible  claim  on  the  part  of 
the  other.^ 

SECTION   VII. 


Contracts  by  Railways  ultra  vires,  and  Illegal. 


Money  unlawjidly  borrowed  company  must 

refund. 
How  far  acts  ultra  yirea  confirmed  by 

acquiescence. 
Comf)any  not   restrained  from  making 

unlawful  payments  on   the  ground  of 

policy. 
Decision  rests  on  no  safe  grounds. 
It  seems  too  much  like  paying  black  mail 

to  buy  peace. 


1.  Contracts  to  make  erections  not  authorized 

by  their  charter. 

2.  Contracts  to  indemnify  other  companies 

against  expense. 
8.    Contracts  to  divide  profits. 

4.  Illustration  of  the  doctrine  ultra  Tires. 

5.  How  far  railuxiys  may  accept  bills  of  ex- 

change. Railway  companies  not  empow-  10. 
ertd  to  make  bills  and  notes  except  from  11. 
necessity. 

6.  Contracts  ultra  yires  cannot  be  specifi- 

cally enforced  against  the  directors. 

§  148.  1.  It  has  been  considered,  that  a  contract  by  a  railway 
company  with  the  corporation  of  a  city,  by  which  the  company 
bind  themselves  to  erect  a  bridge  and  other  accessory  works 
across  a  river,  at  a  point  where,  by  their  charter,  they  are  not 
authorized  to  pass,  and  to  do  this  by  a  definite  time,  and  in 
default  to  pay  one  thousand   pounds,  as   liquidated    damages, 

>  Boston  &  Lowell  Railw.  c.  The  Boston  &  Maine  Railw.,  5  Cush.  375. 
'  Androscoggin  &  Kennebec  Railw.  r.  Androscoggin  Railw.,  52  Me.  417. 


614  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII, 

such  works  being,  without  an  act  of  parliament,  a  nuisance,  is 
an  illegal  contract,  and  equally  so  notwithstanding  a  stipulation 
that  the  company  shall  in  the  mean  time  exert  themselves  to 
obtain  an  act  authorizing  the  erections.^ 

2.  And  where  the  chairman  of  the  Southeastern  Railway 
Company  promised  the  managing  committee  of  a  proposed  rail- 
way company,  that  in  consideration  of  their  not  abandoning 
their  project,  but  pursuing  it  in  parliament,  the  Southeastern 
*  Railway  Company  would,  in  case  of  their  bill  being  rejected, 
insure  the  company,  of  which  they  were  the  managing  commit- 
tee, against  all  loss,  and  would  pay  all  expenses  incurred  by 
them  in  endeavoring  to  obtain  the  act ;  and  the  Southeastern 
Railway  Company  were  authorized,  by  their  acts,  to  apply  their 
funds  in  certain  ways,  not  including  this :  it  was  held  ^  that  the 
agreement  was  void,  as  it  was  an  agreement  made  by  contract- 
ing parties  (who  must  be  presumed  to  know  the  powers  of  the 
defendants'  company,  by  their  acts  of  parliament,  which  are  pub- 
lic acts)  that  the  company  should  do  an  act  which  was  illegal, 
contrary  to  public  policy  and  the  provisions  of  the  statutes.^ 

3.  And  a  contract  by  which  one  railway  agrees  to  give  up  to 
another  railway  a  part  of  its  profits,  in  consideration  of  securing  a 
portion  of  the  profits  of  the  other  company,  is  illegal,  and  ultra  vires.* 

»  The  Mayor  of  Norwich  v.  The  Norfolk  Railw.,  4  El.  &  Bl.  397;  s.  c.  30 
Eng.  L.  &  Eq.  120. 

*  McGregor  v.  The  Official  Manager  of  the  Deal  &  Dover  Railw.,  16  Eng. 
L.  &  Eq.  180,  in  Exchequer  Chamber ;  s.  c.  18  Q.  B.  618.  See  also  East  Anglian 
Railways  Co.  v.  Eastern  Counties  Railw.,  11  C.  B.  775  ;  s.  c.  7  Eng.  L.  &  Eq.  505, 
where  the  same  question,  in  effect,  is  determined.     Ante,  §  16. 

3  Ante,  §  66,  n.  3. 

*  Shrewsbury  &  Birmingham  Railw.  v.  London  &  Northwestern  Railw., 
6  House  of  Lords,  113  ;  s.  c.  29  Law  Times,  186.  But  one  company  may  law- 
fully accept  the  lease  of  an  unfinished  railway  under  a  specified  rent  yearly  after 
the  same  is  finished,  and  may  stipulate  for  the  payment  in  advance  of  the  rent 
for  the  whole  term  for  the  purpose  of  constructing  the  road  ;  and  this  will  be  no 
infringement  of  the  statute  allowing  the  connection  of  the  two  roads,  upon  con- 
dition the  first  company  shall  not  expend  any  portion  of  its  reserved  funds  for 
the  construction  of  the  other  road.  This  looks  very  much  like  one  company 
building  the  road  of  the  other  out  of  its  own  funds,  surplus  or  borrowed,  for 
the  use  of  such  road  a  certain  number  of  years.  If  so,  it  is  converting  surplus 
into  capital  without  legal  warrant.  The  case  is  so  near  the  dividing  line  between 
what  is  and  what  is  not  justifiable  as  not  to  be  of  much  authority,  for  general 
adoption,  by  those  who  desire  to  protect  an  existing  company  against  expending 
its  funds  in  extending  its  line.     It  is  one  of  those  cases  which  relucts,  at  declar- 

•616 


§  148.  CONTRACTS  ULTRA   VIRES.  615 

4.  The  rule  laid  down  upon  this  subject  by  a  distinguished 
English  judge,  on  a  recent  occasion  in  the  House  of  Lords,*  is 
perhaps  as  fair  and  full  a  definition  of  the  doctrine  as  can  be 
made.  "  There  can  be  no  doubt  that  a  corporation  is  fully  car 
pable  of  binding  itself  by  any  contract  under  its  common  seal  in 
England,  and  without  it  in  Scotland,  except  where  the  statutes  by 
which  it  is  located  or  regulated  expressly  or  by  necessary  implica- 
tion prohibits  such  contracts  between  the  parties.  Prima  facie  all 
its  contracts  are  valid,  it  lies  on  those  who  impeach  any  contract 
to  make  out  that  it  is  avoided.  This  is  the  doctrine  of  ultra  vires, 
and  it  is  no  doubt  sound  law,  though  the  application  of  it  to  the 
facts  of  each  particular  case  has  not  always  been  satisfactory  to 
my  mind."  His  lordship  here  declares  that  it  would  not  be 
ultra  vires  for  a  company  wishing  to  alter  one  of  its  branches, 
and  about  to  apply  to  parliament  for  authority  to  do  so,  to  enter 
*  into  a  contract  for  land  which  would  be  necessary  for  the  pur- 
pose if  they  should  obtain  the  act. 

6.  The  question  how  far  a  railway  company,  without  special 
grant  of  power  for  that  purpose,  may  accept  bills  of  exchange,  is 
very  carefully  examined  and  thoroughly  discussed,  both  by  court 
and  counsel,  in  a  recent  English  case.^  It  seems  to  be  there  *  con- 
ing the  bona  fide  acts  of  corporations  ultra  vires,  where  no  great  harm  to  any- 
one is  expected  to  ensue,  and  the  public  interest  has  been  materially  subserved. 
Durfee  p.  Old  Colony  &  Fall  River  Railw.  5  Allen,  230. 

'   *  Lord  Wensleydale,  in  the  Scottish  Northeastern  Railw.  Company  c.  Stewart, 
.3  McQu.  Ho.  Lds.  382 ;  8.  c.  6  Jur.  N.  S.  607. 

•  Bateman  v.  Mid-Wales  Railw.  Company,  Law  Rep.  1  C.  P.  499 ;  8.  c.  12 
Jur.  N.  S.  453.  The  language  of  Crompton,  J.,  in  Chambers  v.  Manchester  & 
Milford  Railw.  Co.,  6  B.  «&  S.  688 ;  8.  c.  10  Jur.  N.  S.  700,  seems  to  place  the 
question  upon  its  true  basis. 

"  The  law  as  laid  down  by  Parke,  B.,  in  the  South  Yorkshire  Railw.  &  River 
Dun  Company  ».  The  Great  Northern  Railw.  Company,  does  not  appear  to  be 
questioned,  and  seems  to  be  applicable  to  the  present  case.  '  Corporations, 
which  are  creations  of  the  law,  are,  when  the  seal  is  properly  affixed,  bound 
just  as  individuals  are  by  their  own  contracts,  and  as  much  as  all  the  members  of  a 
partnership  would  be  by  contract  in  which  all  concurred.'  This  is  undoubtedly 
true  of  corporations  generally ;  but  as  Mr.  Lush  has  observed,  railway  corpora- 
tions are  the  creatures  of  an  act  of  parliament ;  and  the  question  is,  how  far  pro- 
vision has  been  made  for  conferring  upon  them  borrowing  powers,  which  are  said 
to  have  been  exercised  in  the  present  case.  '  But,'  proceeds  Parke,  B.,  *  where 
a  corporation  is  created  by  act  of  parliament  for  particular  purposes,  with 
special  powers,  then  indeed  another  question  arises ;  their  deed,  thouph  under 
their  corporate  seal,  and  that  regularly  affixed,  does  not  bind  them,  if  it  appear 

•  616,  617 


616  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

sidered,  that  unless  the  corporation  is  a  trading  company,  as  the 
Bank  of  England  or  the  East  India  Company,  there  is  no  pre- 
sumptive power  to  accept  bills  of  exchange.  In  the  case  of  rail- 
way corporations,  created  for  a  special  purpose,  there  is  no  pre- 
sumptive power  either  to  borrow  money,  or  to  issue  or  accept 
bills  of  exchange  for  the  purpose  of  negotiation  in  the  market. 
The  rule  is  thus  stated  by  one  of  the  judges  in  the  case  last 
cited,  speaking  of  trading  corporations.  "  Such  a  corporation 
may,  in  some  cases,  bind  itself  by  promissory  notes  and  bills  of 
exchange.  .  .  .  But  a  corporation  will  not  have  these  extraordi- 
nary powers,  unless  the  nature  of  the  business  in  which  it  is 
engaged  raises  a  necessary  implication  of  their  existence." 

6.  Contracts  ultra  vires ^  entered  into  by  the  directors,  and  which 
are  not  binding  upon  the  company,  cannot  be  specifically  enforced 
against  the  directors,  nor  can  the  directors  be  decreed  by  the  court 
to  make  good  their  representations.^ 

7.  A  corporation  having  no  power  to  lend,  made  a  loan  to  a 
company  having  no  power  to  borrow.  The  borrowers  were  aware 
of  those  facts.     They  bought  a  canal  with  the  money ;  but  that 

by  the  express  provisions  of  the  statute  creating  the  corporation,  or  by  necessary 
and  reasonable  inference  from  its  enactments,  that  the  deed  was  ultra  vires, — 
that  is,  that  the  legislature  meant  that  such  a  deed  should  not  be  made.'  This, 
as  it  appears  to  me,  touches  the  very  question  before  us,  and,  moreover,  seems 
to  convey  the  notion  that  directors  of  a  railway  company  are  of  the  nature  of 
special  rather  than  general  agents  of  the  company  they  represent.  They  have 
the  custody  of  the  seal  of  the  company,  but  they  have  not  the  power  to  affix  it  to 
instruments  which  the  legislature  has  declared  to  be  ultra  vires ;  and  should  this 
be  done,  the  company  are  not  bound."  .  .  . 

"  These  bonds,  therefore,  seem  in  effect  to  amount  to  an  account  stated,  and 
a  promise  to  pay,  under  seal ;  and,  so  long  as  they  are  used  for  the  purpose  for 
which  they  were  originally  intended,  it  may  be  that  there  is  nothing  objectionable 
in  them.  But  here  the  bonds  are  issued  by  the  directors  for  the  purpose  of  rais- 
ing money  to  discharge  liabilities  into  which  the  plaintiff  has  entered  on  behalf 
of  the  company,  of  which  he  was  chairman ;  and  this  is,  to  say  the  least  of  it,  an 
indirect  mode  of  borrowing,  and  beyond  the  powers  conferred  upon  the  company 
under  their  act.  The  point  was  also  put  to  us  upon  the  argument  whether  the 
prohibition  to  borrow  was  to  be  held  to  extend  to  the  raising  of  small  sums  for 
the  immediate  necessities  of  a  newly  started  company ;  and  to  this,  we  think,  it 
was  well  answered,  that  if  once  a  company  be  permitted  to  overdraw  one 
hundred  pounds,  there  would  be  no  impediment  to  their  doing  so  to  any  extent 
to  which  their  credit  would  reach.  I  am  therefore  of  opinion  that  these  bonds 
are  void,  and  that  the  plaintiff  is  not  entitled  to  recover  upon  them." 

'  ElUs  V.  Coleman,  25  Barb.  662. 


§  148.  CONTRACTS   ULTRA  VIRES.  617 

was  set  aside,  and  the  purcliase-money  ordered  to  be  refunded. 
The  loaning  company  sought  a  refunding  of  the  money  loaned  by 
them,  with  the  interest,  out  of  the  refunded  purchase-money.  It 
was  held  they  were  entitled  to  a  decree  accordingly.*  But  the 
lender  of  money  to  a  company  having  no  power  to  borrow,  cannot 
compel  the  company  to  refund  the  money,  unless  it  has  been  bona 
fide  applied  to  the  purposes  of  the  company.* 

8.  Where  part  of  a  contract  only  is  ultra  vires  of  the  company, 
a  court  of  equity  will  restrain  that  portion  only.^^  Where  there 
*  is  a  defect  of  capacity  in  the  company  to  do  the  act,  the  power 
cannot  be  created  by  the  express  agreement  of  the  sharoliolders ; 
nor  can  it  be  presumed  from  any  extent  of  acquiescence.  But 
where  only  certain  formalities  are  required  to  the  valid  execution 
of  the  act,  as  the  consent  of  a  general  meeting,  that  will  be  pre- 
sumed from  acquiescence.^^  But  where  dissentient  members  ^^ 
were  allowed  to  retire  by  the  resolution  of  a  general  meeting,  it 
was  held  the  other  members  could  not  be  allowed  to  question  its 
regularity  and  validity,  after  an  acquiescence  of  twenty  years, 
although  ultra  vires. 

9.  Directors  of  an  insurance  company  offered  to  pay  losses 
caused  by  the  explosion  of  gunpowder,  although  expressly  ex- 
cepted from  the  risks  assumed  by  the  policy,  at  the  same  time  not 
admitting  any  legal  liability  to  do  so.  On  a  bill  by  a  shareholder  to 
restrain  the  directors  from  doing  so,  it  appearing  that  it  was  usual 
and  advantageous  for  companies  to  do  so,  although  not  strictly 

•  Ernest  v.  Croysdell,  2  De  G.  F.  &  J.  176 ;  s.  c.  6  Jur.  N.  S.  740. 

'  Troup  in  re,  29  Beav.  353;  Hoare  ex  pari e,  30  id.  225. 

'"  Maunsell  v.  Midland  Great  Western  (Ireland)  Railw.  Co.,  1  H.  &  M.  180; 
8.  C.  9  Jur.  N.  S.  660.  It  was  here  held,  that  an  agreement  to  contribute  to  the 
parliamentary  deposit  required  on  bills  promoted  by  another  company  is  ultra 
vires.  So  is  an  agreement  to  take  shares  in  the  future  extension  of  another 
company.  So  also  is  an  agreement  to  make  traffic  regulations  applicable  to 
future  extensions.  But  no  such  agreement  is  ultra  vires  if  its  validity  is  ex- 
pressly made  dependent  upon  the  sanction  of  parliament.  But  where  part  of 
an  entire  arrangement  between  two  companies,  the  parts  of  which  are  dependent 
upon  each  other,  is  illegal,  or  ultra  vires,  a  court  of  equity  will  restrain  the 
execution  of  every  portion  of  the  arrangement.  Hattersley  v.  Shelbume,  7  Law 
T.  N.  S.  650. 

"  British  Provident  Life  Ins.  Co.,  ex  parte  Grady,  9  Jur.  N.  S.  631. 

'•  Brotherhood  in  re,  31  Beav.  366.  A  restriction  upon  the  liability  of  tlie 
shareholders  for  bills  drawn  by  the  company  will  not  aQuct  the  responsibility  of 
the  company.     State  Fire  Ins.  Co.,  8  L.  T.  N.  S.  146. 

•618 


618  ARRANGEMENTS   BETWEEN   COMPANIES.  CH.  XXII. 

responsible  for  the  loss :  held,  that  this  was  a  mode  of  carrying 
on  the  business  with  which  the  court  could  not  interfere.^^ 

10.  Tliis  is  a  most  remarkable  decision,  but  more  remarkable 
for  the  reasons  and  grounds  upon  which  it  is  placed.  The  fact 
that  the  unlawful  payments  proposed  to  be  made  were  prudent 
and  politic,  is  nothing  more  than  may  be  urged  in  favor  of  all 
proposed  illegal  diversion  of  the  funds  of  a  company.  It  is  always 
proposed  thereby  to  advance  the  interests  of  the  company,  and 
consequently  the  dividends  to  the  shareholders.  It  is  impossible 
to  suppose  that  any  such  principle  can  ultimately  maintain  its 
ground  in  the  English  courts  of  equity. 

11.  The  subsequent  cases  seem  to  manifest  the  feeling  that  all 
secure  ground  to  rest  upon  is  taken  from  under  them.  It  is  said  in 
one  case  ^*  *  that  in  matters  strictly  relating  to  the  internal  manage- 
ment of  the  company,  even  though  not  strictly  within  the  terms  of 
the  constitution  of  the  company,  the  court  will  not  interfere.  But 
it  is  here  added,  if  the  matters  complained  of  are  plainly  beyond 
the  powers  of  the  company,  and  are  inconsistent  with  the  objects 
for  which  the  company  was  constituted,  the  court  will  interfere, 
at  the  instance  of  the  minority,  to  prevent  the  act  complained  of 
from  being  carried  out.  If  this  is  intelligible  to  others,  or  rec- 
oncilable with  good  sense  and  good  law,  it  certainly  passes  our 
comprehension,  and  we  can  only  say  that  we  should  not  expect 
it  to  be  long  maintained  anywhere.  It  is  nothing  more  or  less 
than  paying  black  mail  to  buy  peace,  and  if  public  companies  can 
do  that  witli  funds  they  hold  in  trust,  it  may  be  as  well  for  courts 
of  equity  not  to  attempt  to  define  what  they  may  or  may  not  do. 

§  148  a.  The  following  points,  decided  by  a  court  of  learning 
and  experience,  in  regard  to  the  rights  of  railway  corporations  in 
one  state  to  enter  into  permanent  arrangements  with  similar  cor- 
porations in  other  states,  with  our  own  comments  upon  it,  as 
published  in  the  American  Law  Register ,i  we  deem  of  sufficient 
importance  as  illustrating  some  of  the  doctrines  discussed  in  the 
preceding  section,  to  be  here  repeated.  The  opinion  of  Judge 
Storer^  at  length,  will  be  found  in  the  American  Law  Register,^ 
and  will  repay  careful  reading. 

"  Taunton  r.  Royal  Ins.  Co..  2  H.  «&  M.  135 ;  s.  c.  10  Jur.  N.  S.  291. 
"  Gregory  v.  Patchett,  38  Beav.  595 :  8.  c.  10  Jur.  N.-  S.  1118. 
>  Vol.  5,  N.  S.,  733.  «  Vol.  6,  N.  S.,  733-744. 

*619 


§  148  a.  C0NTRACT8   ULTRA   VIRES.  619 

1.    TTupowero/a  receiver  to  sue  in  the  name  I  8.   Statement  of  the  contract  and  ground  of 


of  the  corporation. 
Foreign  railway  corporation  acquired  no 
prerogative  rights  by  leasing  a  portion  of 
the  track  of  a  domestic  railway. 


holding  it  void,  as  being  ultra  virea. 

Further  reasons  why  such  contract  cannot 
be  spec\ficaUy  perfomud  here. 

8.  Comments  ujnn  the  preceding  proposi- 
tions. 


Superior  Court  of  Cincinnati.  Ohio  and  Mississippi  Railroad 
Company  v.  Indianapolis  and  Cincinnati  Railroad  Company. 

1.  A  receiver  appointed  by  the  Circuit  Court  of  the  United 
States  for  the  Southern  District  of  Ohio,  to  take  possession  of  a 
railway  and  its  effects,  may  sue  in  this  court,  upon  a  contract 
made  by  that  corporation  in  the  corporate  name  of  the  railway, 
without  disclosing  in  the  petition  his  own  name  as  receiver. 

*  2.  A  foreign  corporation  having  no  charter  from  the  state  of 
Ohio,  authorizing  it  to  construct  and  operate  a  railway  in  this 
state,  cannot,  by  a  transfer  of  a  portion  of  a  railway  already  con- 
structed in  the  state  by  legal  authority,  acquire  a  right  to  use  and 
operate  such  railway  witliin  this  state. 

3.  The  plaintiffs,  being  autliorized  to  construct  and  operate  a 
railway  from  Cincinnati  to  Vincennes,  and  the  defendants,  being 
authorized  to  construct  and  operate  a  railway  from  Indianapolis 
to  Lawrenceburg,  of  a  different  gauge,  entered  into  a  contract 
whereby  the  defendants,  in  consideration  of  being  allowed  to  lay  a 
third  rail  on  the  road  of  the  plaintiffs,  to  furnish  motive  power  for 
hauling  the  cars  of  the  defendants  on  that  part  of  the  road,  agreed, 
among  other  things,  to  lend  to  the  plaintiffs  $30,000,  for  the  pur- 
pose of  erecting  a  depot  for  the  plaintiffs  in  Cincinnati,  to  become 
the  property  of  the  plaintiffs  at  the  expiration  of  the  contract ;  to 
form  no  connections  at  or  beyond  Lawrenceburg  prejudicial  to  the 
plaintiffs ;  and  to  give  the  plaintiffs  exclusive  control  of  the  em- 
ployees of  the  defendants  while  on  the  road  of  the  plaintiffs.  Held, 
on  the  construction  of  the  charters  of  the  plaintiffs  and  defendants, 
that  such  contract  was  beyond  the  competency  of  the  contracting 
parties,  and  was  void. 

4.  The  contract  also  provided,  that  the  defendants  should  have 
the  use  of  a  depot  and  certain  grounds  in  Cincinnati  for  unloading 
goods  and  lumber,  for  thirty  years.  Held,  that  this  created  an 
easement  in  the  land,  and  was,  in  connection  with  the  laying  and 
keeping  up  the  third  rail,  in  substance  a  lease,  which  the  plaintiffs 
had  no  authority  to  make,  and  that  it  being  for  more  than  tlirce 
years,  was   also   invalid   under   the   statute    of  frauds,   for  the 

•620 


620  ARRANGEMENTS  BETWEEN   COMPANIES.  CH.  XXII. 

want  of  legal  acknowledgment.  Held,  also,  that  the  defendants 
having  as  a  foreign  corporation  no  right  to  accept  a  lease  of  a 
railway  in  Ohio,  the  plaintiffs  could  not  have  had  a  specific  per- 
formance of  the  agreement,  the  remedies  of  the  parties  not  being 
mutual.^ 

•SECTION  VIII. 

Companies  exonerated  from  Contracts,  by  Act  of  the  Legislature. 

§  149.  It  seems  to  be  conceded  that  a  railway  company  may 
plead  a  subsequent  act  of  the  legislature,  in  bar  of  the  perforin- 
ance  of  their  covenant  or  contract.     But  it  will  afford  no  bar, 

*  We  can  see  no  good  ground  to  question  the  soundness  of  the  foregoing 
opinion ;  but  it  seems  to  us  that  the  case  exhibits  in  a  strong  light  the  embar- 
rassments constantly  resulting  from  having  railway  corporations  restricted  in 
their  corporate  functions  to  the  limits  of  state  lines.  It  would  certainly  seem 
that  there  is  far  more  necessity  and  propriety  in  having  all  the  railway  corpora- 
tions in  the  country  possess  a  national  character,  than  there  is  in  giving  the 
same  character  to  all  the  banks  of  the  countr}',  which  has  been  already  practi- 
cally effected  by  means  of  discriminating  taxation.  There  is  every  reason  to 
regard  railways  as  national  institutions,  in  almost  every  sense  in  which  they 
possess  a  public  character,  or  perform  public  service,  with  the  single  exception 
of  intercommunication,  which  is  mainly  of  local  and  state  concern. 

1.  As  one  of  the  wonderful  advancements  of  military  operations  in  modern 
times,  by  which  railways  have  wrought  a  complete  change  in  the  conduct  of  war, 
and  have  become  an  indispensable  necessity,  they  are  entirely  of  a  national 
character,  so  much  so  as  to  exclude  all  state  control  in  times  of  war  or  civil 
commotion. 

2.  In  regard  to  postal  communication,  which  has  been  regarded  as  exclusively 
of  a  national  character,  since  the  early  and  palmy  days  of  the  Persian  monarchy, 
where  public  posts  are  said  to  have  originated,  railways  must  also  be  regarded  as 
an  indispensable  necessity.  For  if  we  admit  the  right  of  state  control  over  all 
or  any  considerable  portion  of  the  railways  in  the  country,  it  will  place  all  postal 
communication  at  the  mercy  and  good  will  of  state  authority,  which  any  one 
must  see  is  wholly  inadmissible. 

We  discussed  the  rights  of  railway  corporations  in  regard  to  acquiring  land 
and  other  prerogative  rights  in  adjoining  states,  without  the  action  of  the  legisla- 
ture, in  a  case  in  Vermont,  many  years  since,  when  we  came  to  the  conclusion 
that  no  such  prerogative  rights  could  be  acquired  out  of  the  state  of  the  charter, 
except  by  legislative  act.  State  v.  B.  C.  &  M.  Railw.,  25  Vt.  433.  This  will 
not  preclude  such  corporations  from  acquiring  the  title  of  land  out  of  the  state, 
by  voluntary  contract,  or  entering  into  any  other  contract,  of  the  ordinary 
character  of  contracts  between  natural  persons,  but  it  will  not  justify  taking 
land  compulsorily,  or  operating  a  railway  and  taking  tolls,  &c. 
•621 


§150. 


WIDTH   OP  GAUGE.  —  JUNCTION   OP  RAILWAYS. 


621 


unless  the  act  either  expressly,  or  hy  clear  implication,  renders  the 
duty  of  the  contract  unlawful  or  comes  in  conflict  with  it.^ 


•SECTION    IX, 


Width  of  Gauge.  —  Junction  with  other  Roads. 


Contract  to  make  gatige  of  the  companies 
the  same,  although  contrary  to  law  of 
state,  at  its  date,  may  be  legalized  by 
statute. 


1.  Where  the  act  requires  broad  gauge,  does 

not  prohibit  mixed  gauge. 

2.  Permission  to  unite  with  other  road,  signi- 

Jies  a  road  dc  facto. 
8.  Equity  will   sometimes   enjoin   company 
against  changing  gauge. 

§  150.  1.  Where  the  company's  special  act  required  them  to  lay 
down  a  railway  of  such  gauge  and  construction  as  to  be  worked 
in  connection  with  another  company  named  (the  broad  gauge),  a 
court  of  equity  declined  to  interfere,  by  injunction,  when  the  com- 
pany were  laying  down  part  of  the  line  with  double  tracks  of  the 
mixed  gauge,  there  being  no  prohibition  in  the  act  against  such  a 
construction,  the  broad  gauge  being  all  which  was  required  by  the 
act.i 

2.  Where  the  act  of  incorporation  gave  the  company  the  right 
to  construct  a  road  in  a  particular  line,  and  also  required  them  to 
purchase  a  former  railway  along  the  same  route,  and  gave  them 
the  right  to  connect  "  their  road  with  any  road  legally  authorized 
to  come  within  the  limits  of  the  city  of  Erie,"  it  was  held  that  this 
right  extended  equally  to  the  road  purchased  or  built  by  them, 
and  that  they  had  the  right  to  connect  with  any  other  railway  in 
the  actual  use  of  another  company  in  Erie,  without  inquiry  whether 
such  company  were  in  the  legal  use  of  their  franchises  at  the  time 
or  not.  That  is  a  question  which  cannot  be  inquired  into  in  this 
collateral  manner.^ 

*  Wynn  r.  The  Shropshire  Union  Railw.  &  Canal,  6  Exch.  420 ;  Stevens  v. 
South  Devon  Railw.,  18  Beav,  48;  s.  c.  12  Eng,  L.  &  Eq.  229.  But  where 
one  was  induced  to  give  lands  to  a  railway  company,  or  subscribe  for  stock,  and 
the  essential  inducement  to  make  the  contract  was  that  the  company  should  con- 
struct their  road  within  some  definite  time,  the  extension  of  time  for  the  construc- 
tion of  the  road,  by  act  of  the  legislature,  will  not  exonerate  the  company  from 
their  obligation  to  such  person.     Henderson  e.  Railw.  Company,  17  Texas,  560. 

'  Great  Western  Railw.  v.  Oxford,  Worcester,' &  Wolverhampton  Railw., 
6  De  G.  &  8.  437 ;  8.  c.  10  Eng.  L.  &  Eq.  297. 

*  Cleveland,  Painsville,  &  Ashtabula  Railw.  v.  The  City  of  Erie,  27  Penn. 
St.  380. 

•622 


622  ARRANGEMENTS  BETWEEN  COMPANIES.      CH.  XXH. 

3.  Where  two  railway  companies  agree  to  operate  their  roads  in 
connection,  between  certain  points,  if  one  of  the  companies  changes 
its  gauge,  so  as  to  break  up  the  connection  contemplated,  an  in- 
junction will  be  granted  to  enforce  the  contract.^ 

*  4.  A  contract  entered  into  by  railway  companies  to  make  the 
gauge  of  both  the  companies  the  same,  is  not  illegal,  although  this 
be  contrary  to  the  law  of  one  of  the  states,  if  the  contract  appear 
to  have  been  made  with  reference  to  an  alteration  of  the  powers  of 
the  company,  in  that  respect,  and  that  such  alteration  was  pro- 
cured before  any  part  of  the  track  was  laid.^ 

'  Columbus,  Piqua,  &  Ind.  Railw.  v.  Ind.  &  Belief.  Railw.,  5  McLean's 
C.  C.  R.  460. 

*623 


§  151.   GENERAL  RULES  OF  LAW  GOVERNING  THIS  REUEDT.    623 


♦CHAPTER  XXIII. 


HANDAMUS. 


SECTION  I. 


General  Rules  of  Law  governing  this  Remedy. 


1.  Regarded  at  a  auppUmentary  remedy. 

2.  Mode  of  procedure. 

( 1 . )  Matter  o/discretion. 
(2.)  Alternative  writ. 
8.  Proceedings  in  most    of  the   American 

courts. 
4.  English  courts  do  not  allow  application  to 
be  amended. 


6.  Recent  English  statute  has  easentially  sim- 
plified proceedings. 

6.  Mode  of  trying  the  truth  of  the  return. 

7.  Costs  rest  in  the  discretion  of  court. 

8.  Mode  of  service. 

9.  By  late  English  statutes,  mandamus  effects 

specific  performance. 


§151.  1.  The  office  of  the  writ  of  mandamus  is  very  extensive. 
It  is  the  supplementary  remedy  where  all  others  fail.  Lord  Mans- 
field says,^  "  It  was  introduced  to  prevent  disorder,  from  a  failure 
of  justice  and  defect  of  police.  Therefore  it  ought  to  be  used  upon 
all  occasions  where  the  law  has  established  no  specific  remedy,  and 
where  in  justice  and  good  government  there  ought  to  be  one." 
"  If  there  be  a  right  and  no  other  specific  remedy  this  should  not 
be  denied."  ^  The  general  rules  applicable  to  the  use,  and  the 
mode  of  obtaining  this  writ,  are  sufficiently  discussed  in  the  digests, 
abridgments,  and  elementary  works,  under  this  title.* 

•  Rex  r.  Barker,  3  Burr.  1266.  See  Woodstock  v.  Gallup,  28  Vt.  687. 
People  r.  Head,  26  111.  325.  Draper  r.  Noteware,  7  Cal.  276.  The  same 
principles  are  declared  by  Lord  Ellenborough,  in  Rex  r.  Archbishop  of  C,  8 
East,  213,  219;  6  Ad.  &  Ellis,  321.  And  where  there  is  any  other  equally  effi- 
cacious remedy  this  writ  will  not  lie.  Bush  v.  Beavan,  1  H.  &  C.  500 ;  32  L. 
J.  Exch.  54.     Post,  §  160,  pi.  3. 

*  Commonwealth  ».  Pittsburgh,  34  Penn.  St.  496 ;  Fremont  v.  Crippen,  10 
Cal.  211.  In  this  last  case  it  was  held  mandamus  would  lie  to  compel  the  sheriff 
to  execute  a  writ  of  possession,  although  there  might  be  either  a  civil  action  or 
a  criminal  prosecution  against  him  for  the  refusal,  since  neither  of  these  reme- 
dies would  do  full  justice  to  the  complainant. 

»  12  Petersdorff,  Ab.  438 ;  6  Bac.  Ab.  309,  418,  tit.  Mandamus ;  3  Black. 
Coram.  110,  264;  1  Kent,  Coram.  322;  Curtis's  Digest,  333.  And  that  the 
party  may  have  some  remedy  in  equity  will  not  preclude  this  remedy.     But  see 

*267 


624  MANDAMUS.  CH.  XXIII. 

*  2.  The  mode  of  proceeding  in  obtaining  the  writ  is  controlled 
very  much  by  statute  in  England  at  the  present  time,  and  in  most 
of  the  American  states.  There  are  some  few  points  which  are  of 
general  application. 

(1.)  The  power  of  granting  the  original  prerogative  writ  of 
mandamus  in  England  was  confined  to  the  Court  of  King's  Bench ,3 
and  in  most  of  the  American  states  it  is  given,  by  statute,  to  the 
highest  court  of  law  of  general  jurisdiction.^  This  prerogative 
writ  seems  anciently  to  have  been  issued  to  inferior  jurisdictions 
by  the  Court  of  Chancery  in  England,  but  not  to  the  King's 
Bench.*  This  writ  is  not  demandable  as  of  right,  but  is  awarded 
in  the  discretion  of  the  court.^ 

(2.)  The  form  of  application  is  either  by  motion  in  court,  and 
*  the  production  of  affidavits  in  support  of  the  ground  of  the  mo- 
tion, in  which  case,  if  the  motion  prevails,  a  rule  to  show  cause 
why  the  writ  should  not  issue,  or  an  alternative  mandamus  issues 

infra.  Nor  that  an  indictment  will  lie.  Post,  §  160.  And  it  is  no  bar  to  this 
remedy  that  the  party  might  by  statute  build  the  work,  at  the  expense  of  the 
other  party,  by  order  of  a  justice.  Reg.  v.  The  Norwich  &  B.  Railw.,  4  Railw. 
C.  112.  The  legislature  empowered  the  board  of  supervisors  of  the  county  of 
New  York  to  cause  to  be  raised  and  collected  a  sum  not  exceeding  $80,000  to 
meet  and  pay  whatever  sum  up  to  that  amount  might  be  found  due  to  the  con- 
tractors with  the  commissioners  of  records,  and  authorized  the  comptroller  to 
pay  "said  amount  when  it  should  be  judicially  determined."'  The  contractor 
not  having  the  power  to  bring  action  and  obtain  judgment  against  the  supervi- 
sors in  the  regular  manner,  it  was  held  that  this  was  n6t  the  intention  of  the 
legislature,  and  that,  in  the  absence  of  any  specific  directions  in  the  act  as  to 
how  this  judicial  determination  should  be  obtained,  it  would  be  unreasonable  to 
infer  that  any  other  remedy  was  intended  than  that  attainable  by  mandamus ; 
and  that  application  for  mandamus  was  the  proper  remedy  for  the  contractors, 
upon  the  refusal  of  the  comptroller  to  pay  them  the  amount  certified  by  the 
commissioners  to  be  due  them.  People  v.  Haws,  34  Barb.  69.  And  see,  to  the 
same  point,  Regina  v.  Port  of  Southampton,  1  E.  B.  &  S.  5 ;  s.  c.  7  Jur.  N.  S. 
990 ;  30  L.  J.  Q.  B.  244.  And  where  a  new  right  has  been  created  by  act  of 
Parliament,  the  proper  mode  of  enforcing  it  is  by  mandamus  at  common  law. 
Simpson  v.  Scottish  Union  Fire  «&  Life  Ins.  Co.,  9  Jur.  N.  S.  711 ;  8.  c.  32  L.  J. 
Ch.  329 ;  8.  c.  1  H.  &  M.  681.     Commonwealth  v.  Pittsburg,  34  Penn.  St.  496. 

*  The  Rioters'  Case,  1  Vernon,  175 ;  Ang.  &  Ames  on  Corporations,  §  697. 
But  see  R.  v.  Severn  &  Wye  Railw.,  2  B.  &  Aid.  646 ;  R.  ».  Commissioners  of 
Dean  Inclosure,  2  M.  &  S.  80 ;  R.  ».  Jeyes,  3  Ad.  &  El.  416. 

*  Rex  V.  Bishop  of  London,  1  T.  R.  331,  334 ;  Rex  v.  Bishop  of  Chester,  id. 
896,  404 ;  id.  425 ;  2  T.  R.  336.  People  v.  Auditor  of  Public  Accounts,  33  111. 
9 ;  8.  C.  3  Am.  Law  Reg.  N.  S.  332.  And  the  court  wilT  not  entertain  juris- 
diction unless  substantial  interests  are  involved.     Id. 

•  268,  259 


§  151.   GENERAL  RULES  OP  LAW  GOVERNING  THIS  REMEDY.     625 

upon  the  ex  parte  hearing,  and  the  definitive  hearing  is  had  upon  the 
return  of  the  rule,  or  the  return  to  the  alternative  writ. 

3.  The  more  common  practice  in  the  American  courts  (which 
often  hold  but  one  or  two  short  sessions  annually  in  a  county,  and 
where,  by  consequence,  such  formal  proceedings  would  be  attended 
with  embarrassing  delays)  is,  by  formal  petition,  alleging  in  detail 
the  grounds  of  the  application,  which  is  served  upon  the  opposite 
party,  and  all  parties  supposed  to  have  an  interest  in  the  questions 
involved,  a  sufficient  time  before  the  term  to  give  an  opportunity 
for  taking  the  testimony  upon  notice ;  and,  upon  the  return  of  the 
petition,  the  case  is  heard  upon  its  general  merits ;  and  in  either 
form,  if  the  application  prevails,  a  peremptory  mandamus  issues, 
the  only  proper  return  to  which  is  a  certificate  of  compliance  with 
its  requisitions,  without  further  excuse  or  delay.^ 

"  Hodges  on  Railways,  640,  641,  642,  643,  644.  It  is  6rst  indispensable  to 
demand  of  the  party,  against  whom  the  application  is  to  be  made,  to  perform  the 
duty,  and  the  party  must,  it  would  seem,  be  made  aware  of  the  purpose  of  the 
demand.  The  King  r.  Wilts  &  Berks  Canal  Navigation,  3  Ad.  &  Ellis,  477 ; 
The  King  r.  Brecknock  &  Abergavenny  Canal  Navigation,  3  Ad.  &  Ellis,  217. 
People  r.  Romert,  18  Cal.  89.  The  refusal  must  be  of  the  thing  demanded, 
and  not  of  the  right  merely.  The  King  v.  Northleach  &  Witney  Roads,  5  Barn. 
&  Ad.  978.  The  refusal  must  be  direct  and  unqualified,  but  may  be  made  as 
effectual,  by  silence  as  by  words  or  acts,  but  the  party  should  understand  that 
he  is  expected  to  perform  the  required  duty,  upon  pain  of  the  legal  redress  be- 
ing resorted  to,  without  further  delay.  The  Queen  v.  Norwich  &  Brandon 
Railw.,  4  Railw.  C.  112;  The  Queen  r.  Bristol  &  Exeter  Railw.,  4  Q.  B.  162. 
But  this  should  be  taken,  as  a  preliminary  qucstioil,  according  to  the  English 
practice.  Queen  v.  Eastern  Counties  Railw.,  10  Ad.  &  Ellis,  531.  But  in 
Commonwealth  r.  Commissioners,  37  Penn.  St.  237,  a  demand  was  held  unne- 
cessary in  the  case  of  public  officers  neglecting  to  do  their  duty. 

Conditions  precedent  must  be  shown  to  have  been  performed. 

But  the  mere  retjuisition  of  an  act  of  Parliament  that  parties  claiming  dam- 
ages, by  reason  of  a  railway  company's  works,  shall  enter  into  a  bond  to  prose- 
cute their  complaint  and  pay  their  proportion  of  the  costs,  before  the  company 
should  be  obliged  to  issue  their  warrant  to  summon  a  jury,  and  if  not  so  done, 
the  company  might  give  notice,  requiring  the  same  to  be  done  before  commenc- 
ing the  inquiry,  was  held  not  to  be  a  condition  precedent,  unless  required  by 
the  company.     The  Queen  v.  The  North  Union  Railw.,  1  Railw.  C.  729. 

And  where  an  umpire  failed  to  make  an  award,  it  was  held  the  company 
might  be  compelled,  by  mandamus,  to  issue  a  warrant  for  the  sheriff  to  assess 
the  compensation,  and  no  formal  demand  was  necessary'.  Ilodgcs  on  Railways, 
642,  and  note;  South  Yorkshire  &  Goole  Railw.,  in  re  18  Law  Jour.  (Q.  B.) 
63.  A  return  stating  an  excuse  for  non-compliance  with  a  peremptory  writ  of 
mandamus,  is  not  admissible.     Regina  r.  Ledgard  et  ah.  Mayor,  &c.  of  Poole,  1 

40 


626  MANDAMUS.  CH.  XXIII. 

*  4.  The  general  nile  of  the  English  courts  seems  to  be,  that  if 
the  first  application  is  denied  on  account  of  defects  in  the  affida- 
vits, not  to  permit  a  second  application  to  be  made ;  and  the  rule 
extends  to  other  writs,  resting  in  the  discretion  of  the  courtJ 

*  5.  But  the  late  Common-law  Procedure  Acts  in  England,  1852, 
1854,  apply  to  this  class  of  writs,  and  have  essentially  simplified 
the  proceedings,  and  rendered  them  more  conformable  to  reason 
and  justice  than  in  some  of  the  American  courts  even,*  the  rule  for 

Q.  B.  616.  Application  by  the  prosecutor  for  leave  to  withdraw  his  plea  and 
argue  the  case  on  the  return  refused.  R.  v.  Mayor  of  York,  3  Q.  B.  550 ; 
Strong,  Petitioner,  &c.,  20  Pick.  484. 

It  is  the  practice  for  different  persons,  in  the  same  or  similar  situation,  to 
unite  in  the  same  application  for  a  mandamus,  and  it  is  said  but  one  writ  can  issue  in 
such  a  case.  Rex  v.  Montacute,  1  Wm.  Black.  60 ;  Rex  v.  Kingston,  1  Strange, 
678  (note  1)  ;  Scott  v.  Morgan,  8  Dowl.  P.  C.  328.  But  it  seems  to  be  consid- 
ered that  where  the  rights  are  distinct  and  wholly  independent,  one  writ  -will 
not  be  awarded,  but  several,  and  therefore  the  application  should  be  several. 
Reg.  V.  Chester,  5  Mod.  11 ;  The  case  of  Andover,  2  Salk.  433 ;  Smith  v.  Erb, 
4  Gill  (Md.),  437;  State  r,  Chester  &  Evesham,  5  Halst.  292.  And  the 
petitioner  for  a  mandamus  must  set  forth  clearly  his  interest  in  the  matter  which 
he  presents  as  the  ground  of  his  application.  Fleming,  ex  parte,  2  Wallace 
(U.  S.),  759. 

But  several  connected  matters,  which  are  not  repugnant,  may  be  included,  by 
way  of  defence,  in  the  return.  Reg.  v.  Norwich,  2  Salk.  436 ;  Wright  v.  Faw- 
cett,  4  Burrow,  2041 ;  Rex  v.  Churchwardens  of  Taunton,  1  Cowp.  413. 

Upon  a  mandamus  to  restore  a  corporate  officer  to  his  functions,  the  return 
should  specify  the  grounds  of  the  amotion.  Commonwealth  v.  The  Guardians 
of  the  Poor  of  Philadelphia,  6  Serg.  &  Rawle,  469,  unless  the  officer  were  re- 
movable upon  the  mere  motion  of  the  corporation.  Rex  v.  Guardians  of  Thame, 
1  Strange,  115.  It  is  not  a  sufficient  reason  for  setting  aside  a  peremptory  man- 
damus that  a  previous  alternative  writ  had  not  issued.  Knox  County  v.  Aspin- 
wall,  24  How.  (U.  S.)  376. 

'  Queen  v.  Manchester  &  Leeds  Railw.,  8  Ad.  &  Ell.  413.  And  the  same 
rule  obtains  where  the  first  writ  is  denied  because  no  sufficient  demand  had  been 
made,  and  a  subsequent  demand  is  made.  Ex  paHe  Thompson,  6  Q.  B.  721. 
But  it  is  apprehended  no  such  rule  of  practice  could  be  enforced  in  this  countr}', 
and  very  few,  we  think,  would  regard  it  as  desirable.  It  seems  to  be  relaxing  in 
England,  where  the  alteration  of  the  affidavits  is  mere  form.  Regina  v.  The  G., 
W.  Railw.,  5  Q.  B.  597,  601 ;  Regina  v.  The  East  Lancashire  Railw.,  9  Q.  B. 
980.  And  in  Reg.  v.  Derbyshire,  S.  &  W.  Railw.,  18  Jur.  1054;  s.  c.  26  Eng! 
L.  &  Eq.  101,  the  writ  was  amended,  as  to  the  name  of  the  company.  Reg.  v. 
Eastern  Counties  Railw.,  2  Railw.  C.  836,  amendment  allowed.  Regina  v.  Jus- 
tices of  Warwickshire,  5  Dowl.  382  ;  Reg.  p.  Jones,  8  Dowl.  307  ;  Shaw  v.  Per- 
kins, 1  Dowl.  (N.  S.)  306;  Reg.  v.  Pickles,  3  Q.  B.  599,  n. ;  State  v.  Hastings, 
10  Wise.  518,  525. 

8  And  by  23  and  24  Victoria,  Ch.  126,  §  32,  costs  are  to  be  allowed  against 
*  260,  261 


§  151.   GENERAL  RULES  OP  LAW  GOVERNING  THIS  REMEDY.     627 

the  issuing  of  the  alternative  writ  being  now,  in  all  cases,  made 
absolute  in  the  first  instance,  and  the  whole  hearing  had,  upon  the 
return,  which  in  our  practice  is  still  further  simplified,  by  admitting 
the  party  to  make  answer  to  the  petition,  alleging  the  grounds  of 
his  refusal,  which  are  tried  at  once.^ 

*  6.  If  falsehood  is  alleged  in  the  return  to  the  alternative  man- 
damus, it  was  the  practice  at  common  law  to  drive  the  party  to 
his  action  for  a  false  return.  But  by  statute  in  England,  and 
generally  by  practice  in  this  country,  the  question  is  tried  in  the 

the  defendant  where  an  absolute  writ  ia  granted,  unless  otherwise  specially 
directed  by  the  courts. 

•  Walter  v.  Belding,  24  Vt.  658 ;  Rogers,  ex  parte,  7  Cowen,  626.  In  the 
American  states  the  statute  of  9  Anne,  allowing  the  prosecutor  to  traverse  the 
return  to  the  writ  or  the  answer  to  the  petition,  and  for  the  court  to  determine 
the  truth,  either  upon  affidavit  or  by  the  verdict  of  a  jury  in  their  discretion,  has 
been  pretty  extensively  adopted,  either  in  practice  or  by  statute.  The  People 
V.  Beebe,  1  Barb.  Sup.  Ct.  379 ;  The  People  v.  The  Conunissioners  of  Hudson, 
6  Wend.  o59 ;  Smith  v.  Commonwealth,  41  Penn.  St.  835. 

Where  the  case  is  fully  heard  upon  the  petition  or  rule  to  show  cause,  and 
there  is  no  dispute  in  regard  to  the  facts,  the  court  will  not  delay,  for  the  issuing 
of  the  alternative  writ  and  the  return  thereto,  but  will  in  the  iirst  instance  issue 
the  peremptorj'  mandamus.  Ex  parte  Jennings,  6  Cow.  618 ;  The  People  v. 
Throop,  12  Wend.  183.  The  rule  for  the  peremptory  mandamus  is  sometimes, 
in  the  first  instance,  made  nisi,  to  allow  the  respondents  to  consult,  if  they  will 
comply  with  the  requirements  of  the  judgment.  Walter  v.  Belding,  24  Vt.  668. 
Or  sometimes  this  is  done  to  allow  the  parties  to  arrange  the  matter,  or  the  court 
to  consider  the  case.     Rex  p.  Tappenden,  3  E&st,  186. 

The  court  have  such  control  over  their  own  judgments,  that,  if  a  peremptory 
writ  of  mandamus  be  unfairly  obtained,  it  will  be  set  aside  upon  motion.  The 
People  r.  Everett,  1  Gaines,  8. 

Courts  enforce  compliance  with  the  peremptory  writ  by  attachment,  as  also  a 
return  to  the  alternative  writ,  without  requiring  the  issue  of  an  alias  and  pluries, 
as  in  the  early  £nglisb  practice.  The  cases  are  not  altogether  agreed,  whether 
defects  in  the  writ  are  cured  by  admissions  in  the  return,  but  upon  general  prin- 
ciples of  pleading  it  would  seem  they  are.  The  King  v.  Coopers  of  Newcastle- 
upon-Tyne,  7  T.  R.  648.  But  see  Reg.  c.  Hopkins,  1  Q.  B.  161.  But  where 
an  alternative  mandamus  is  issued,  and  the  defendants  make  their  return,  and 
the  relators,  instead  of  demurring,  take  issue  upon  the  material  allegations  in 
the  return,  they  thereby  admit  that,  upon  its  face,  the  return  is  a  sufficient 
answer  to  the  case  made,  by  the  alternative  writ.  And  if  no  material  fact  is  dis- 
proved upon  the  trial,  the  defendants  will  be  entitled  to  a  verdict  in  their  favor. 
The  People  ex  rel.  Kipp  c.  Finger,  24  Barb.  341.  The  return  should  set  forth 
an  available  justification  for  defendant's  refusal  to  do  the  act  sought  to  be 
enforced,  and  it  may  allege  different  independent  facts  as  furnishing  such  justi- 
fication. 

•262 


628  MANDAMUS.  CH.  XXIII. 

court  issuing  the  writ,  and  the  remedy  there  applied,  damages  and 
costs  being  given  in  the  discretion  of  the  court,  and  execution  en- 
forced. 

7.  Costs  in  all  the  proceedings  for  mandamus  rest  in  the  dis- 
cretion of  the  court,  unless  controlled  by  statute.  By  the  English 
practice  it  is  common  to  award  costs  where  the  application  is  de- 
nied, but  not  always  where  it  prevails.^*^  The  more  general  and 
tlie  more  equitable  rule  in  regard  to  costs,  in  proceedings  where 
the  court  have  a  discretion,  in  that  respect,  is  to  allow  costs  to  the 
prevailing  party,  unless  there  is  some  special  reason  for  denying 
them." 

*  8.  Service  of  such  process,  and  indeed  of  all  process,  by  sum- 
mons, in  England,  is  by  delivering  the  original  where  there  is  but 

'"  Reg.  V.  Mayor  of  Bridgenorth,  10  Ad.  &  El.  66 ;  Reg.  v.  The  Eastern 
Counties  Railw.,  2  Q.  B.  578,  579,  and  cases  cited  by  counsel.  Reg.  ».  East 
AngUan  Railw.,  2  El.  &  Bl.  475 ;  s.  c.  22  Eng.  L.  &  Eq.  274.  1  Wm.  4,  c. 
21,  §  6,  makes  costs  discretionary  with  the  courts,  in  England.  23  and  24 
Victoria,  c.  126,  §  132.  Regina  v.  St.  Saviour,  7  Ad.  &  Ell.  925.  See  Regina 
V.  Brighton  &  South  Coast  Railw.,  10  Law  T.  N.  S.  496. 

"  Reg.  V.  Thames  &  Isis  Commissioners,  8  Ad.  &  Ell.  901,  905 ;  5  Ad.  <&  Ell. 
804;  Reg.  v.  Fall,  1  Q.  B.  636  ;  Reg.  v.  Justices  of  Middlesex,  6  Eng.  L.  &  Eq. 
267,  unless  strong  reasons  for  denying  costs  exist;  1  Q.  B.  751. 

Where  the  prosecutor  omitted  to  proceed  with  a  mandamus  after  a  return  had 
been  made,  the  Court  of  Queen's  Bench  compelled  him  to  elect  either  to  pro- 
ceed or  pay  the  costs.  Reg.  v.  Mayor  of  Dartmouth,  2  Dowl.  (N.  S.)  980.  If 
the  qtio  warranto,  mandamus,  or  other  like  writ,  is  procured  by  the  real  party  in 
interest,  who  is  able  to  pay  costs,  to  be  prosecuted  by  some  one,  not  able  to  pay 
costs,  the  Court  of  Queen's  Bench  will  grant  a  rule,  requiring  the  real  party  to 
pay  costs.  Reg.  v.  Greene,  4  Q.  B.  646.  See  also  a  general  rule,  adopted  im- 
mediately after  the  decision  of  the  last  case,  Easter  Term,  1843,  requiring  a 
formal  rule,  for  pajTnent  of  costs  in  mandamus,  to  be  drawn  up  immediately  on 
reading  all  the  affidavits  on  both  sides,  4  Q.  B.  653.  The  rule  for  costs  is  de- 
cided upon  the  reading  only  of  the  affidavits,  with  reference  to  which  the  rule 
is  drawn  up.  Reg.  v.  St.  Peter's  College,  1  Q.  B.  314,  overruling  Rex  v.  Kirke, 
6  B.  &  Ad.  1089. 

The  parties  are,  in  the  English  cases,  required  to  pay  costs  occasioned  by 
their  delay.  Reg.  v.  Mayor  of  Cambridge,  4  Q.  B.  801.  But  where  the  judge 
makes  a  mistake,  the  parties  who  come  to  defend  his  ruling,  which  they  are 
bound  to  suppose  correct,  do  not  pay  costs.  Reg.  v.  London  &  Blackwall  Railw., 
3  Railw.  C.  409,  and  note. 

The  party  who  institutes  proceedings  for  mandamus,  which  he  is  compelled  to 
abandon,  by  personal  misfortune,  as  being  pauperized  by  the  loss  of  his  trade, 
must  still  pay  costs,  as  the  court  could  only  conclude  he  had  no  grounds  to  sup- 
port his  petition.  Reg.  v.  London  &  Blackwall  Railw.,  4  Jurist,  859.  See  also 
Morse,  Petitioner,  18  Pick.  443. 
*263 


§  151.   GENERAL  RULES  OP  LAW  GOVERNING  THIS  REMEDY.    629 

one  person  summoned,  and  where  there  are  more  than  one,  by 
showing  the  original,  and  delivering  a  copy  to  each  defendant  but 
one,  and  the  original  left  with  such  one.  But  service  by  copy  of  a 
writ  of  mandamus  was  held  sufficient.^ 

9.  By  the  latest  English  statutes  upon  the  subject  of  mandamus,^ 
any  party  requiring  any  order,  in  the  nature  of  specific  performance, 
may  commence  his  action  in  any  of  the  superior  courts  of  common 
law  in  Westminster  Hall,  except  in  replevin  and  ejectment,  and 
may  indorse  upon  the  writ  and  copy  to  be  served,  that  the  plaintiff 
intends  to  claim  a  writ  of  mandamus,  and  the  plaintifif  may 
thereupon  claim  in  the  declaration,  either  together  with  any  other 
demand  which  may  now  be  enforced  in  such  action,  or  separately, 
a  writ  of  mandamus,  commanding  the  defendant  to  fulfil  any  duty, 
in  the  fulfilment  of  which  the  plaintiff"  is  personally  interested. 
And  if  a  mandamus  is  awarded,  it  may  issue  peremptorily  in  the 
first  instance,  in  aid  of  the  execution,  for  damages  and  costs.  The 
form  of  the  writ  is  very  brief,  and  compliance  with  its  requisition 
is  to  be  enforced  by  attachment.  The  prerogative  writ  is  still  re- 
tained, but  its  use,  and  also  that  of  decrees  for  specific  perform- 
ance in  equity,  seem  to  be  pretty  effectually  superseded  by  these 
provisions.** 

'*  Reg.  V.  Birmingham  &  Oxford  Railw.  Co.,  1  EL  &  Bl.  293 ;  s.  c.  16  Eng. 
L.  &  Eq.  94.  The  conductor  of  a  railway  train  in  some  of  the  states  is  regarded 
a«  a  "  hired  agent"  of  the  company,  within  the  meaning  of  the  statute  allowing 
the  service  of  process  upon  such  agent.  New  Albany  &  Salem  Railw.  p. 
Grooms,  9  Ind.  243. 

"  17  &  18  Vict.  ch.  125. 

"  A  mandamus  to  a  local  board  of  health,  constituted  under  11  &  12  Victoria, 
ch.  63,  recited  that  the  prosecutor  had  been  injured  by  the  board  in  the  prosecu- 
tion of  its  powers  under  the  act ;  that  he  had  demanded  compensation  from  the 
board,  and  that  they  had  denied  all  liability,  and  commanded  the  board  that  com- 
pensation be  made  to  him  out  of  the  general  or  special  rate  to  be  levied  under 
the  act.  The  return  stated  that  the  board  had  not  denied  all  liability,  and  that 
it  was  always  ready  to  make  compensation,  as  soon  as  it  Iiad  been  duly  ascer- 
tained under  the  act ;  that  it  had  not  as  yet  been  so  ascertained ;  nor  had  the 
prosecutor  as  yet  taken  any  steps  to  ascertain  the  amount,  nor  notified  the 
board  of  the  amount  of  his  claim,  nor  appointed  nor  given  notice  to  appoint  an 
arbitrator.  This  return  was  traversed,  generally ;  and  on  the  trial  it  was  found 
that  the  board  had  denied  all  liability,  and  a  verdict  was  entered  for  prosecutor. 
On  a  motion  to  enter  the  venlict  on  the  rest  of  the  return  for  the  board,  and  to 
enter  judgment  for  the  board,  Held,  that  the  mandamus  was  good,  and  that  the 
prosecutor  was  entitled  to  a  verdict  on  the  whole  of  the  return,  and  to  a  per- 
emptory mandamus,  on  the  ground  that,  as  there  did  not  appear  by  the  return 


630  MANDAMUS.  CH.  XXIH. 


•SECTION    II. 

Particular  cases  where  Mandamus  lies  to  enforce  Duty  of 
Corporations. 

§  152.  The  opinion  of  Jervis,  Ch.  J.,  in  the  case  of  York  & 
North  Midland  Railway  v.  Reg.,^  is  perhaps  the  best  commentary 

to  be  any  dispute  as  to  the  amount,  the  rest  of  the  allegations  in  the  return, 
apart  from  the  traverse  of  denial  of  liability,  were  immaterial.  Regina  r.  Burs- 
lem  Board  of  Health,  5  Jur.  N.  S.  1394 ;  s.  c.  1  Ellis  &  Ellis,  1077, 1088.  And  gen- 
erally, where  a  debt  is  of  such  a  nature  that  mandamus  will  be  granted  to  enforce 
its  payment,  it  is  not  necessary  that  the  amount  of  the  debt  should  be  previously 
ascertained,  but  such  amount  may  be  ascertained  in  the  verdict  of  the  jurj-  in 
the  action  in  which  mandamus  is  claimed.  Ward  v.  Lowndes,  5  Jur.  N.  S. 
1124 ;  8.  c.  in  Exch.  Cham.  1  L.  T.  N.  S.  268 ;  1  Ellis  &  Ellis,  940.  But  see 
McCoy  V.  Harnett  County,  5  Jones  Law,  265. 

'  1  El.  «&  Bl.  858;  s.  c.  18  Eng.  L.  &  Eq.  199.  "Upon  these  facts  several 
points  arise  :  First,  does  the  statute  of  1849  cast  on  the  plaintiffs  in  error  a  duty  to 
make  this  railway  ?  Secondly,  if  it  does  not,  is  there  under  the  circumstances  a 
contract  between  the  plaintiffs  in  error  and  the  land-owners,  which  can  be  enforced 
by  mandamus  ?  Thirdly,  and  failing  these  propositions,  does  a  work,  which  in  its 
inception  was  permissive  only,  become  obligator)'  by  part  performance  ?  These 
questions  will  be  found  upon  examination  to  exhaust  the  subject,  and  to  compre- 
hend every  view  in  which  the  mandamus  can  be  supported.  In  substance,  do  these 
acts  of  parliament  render  the  company,  if  they  do  not  make  this  railway,  liable  to 
an  indictment  for  a  misdemeanor,  and  to  actions  by  the  party  aggrieved  ?  For  if 
they  do  not,  a  mandamus  will  not  lie,  and  thus  the  question  depends  entirely 
upon  the  construction  of  the  special  act,  and  the  statutes  incorporated  therewith. 
The  act  of  1849  may  cast  the  duty  upon  the  plaintiffs  in  error,  in  one  of  two 
ways  ;  it  may  do  so  by  express  words  of  obligation,  or  it  may  do  so  by  words  of 
permission  only,  if  the  duty  can  be  clearly  collected  from  the  general  purview 
of  the  whole  statute.  The  words  of  the  3d  section  of  the  act  of  1849,  '  it  shall 
be  lawful  for  the  said  company  to  make  the  said  railway,'  are  permissive  only, 
and  not  imperative,  and  it  is  a  safe  rule  of  construction  to  give  to  the  words  used 
by  the  legislature  their  natural  meaning,  when  absurdity  or  injustice  does  not 
follow  from  such  a  construction.  Indeed,  if  there  were  any  doubt  upon  this 
subject,  other  parts  of  the  statute  referred  to  in  the  argument  clearly  show  that 
these  words  were  intended  to  be  permissive  only.  The  distinction  is  well  put  by 
my  brother  Erie :  '  The  company  are  permitted  at  their  option  to  take  lands, 
turn  roads,  alter  streams,  and  exercise  other  powers,  and  these  matters  are  made 
lawful  for  them ;  but  they  are  commanded  to  make  compensation  for  lands 
taken,  to  substitute  roads  for  those  they  turn,  and  to  perform  other  conditions 
relating  to  the  exercise  of  their  powers,  and  these  matters  are  required  of  them.' 
It  seems  clear,  therefore,  that  the  duty  is  not  cast  upon  the  plaintiffs  in  error  by 
the  express  words  of  the  statute  of  1849 ;  and,  indeed,  it  was  not  so  urged  in  the 
♦  264 


§  152.      CASES  TO  ENFORCE  DUTY  OP  CORPORATIONS.        631 

*  we  could  give  upon  the  present  state  of  tlio  English  law  upon  this 
subject. 

argument ;  nor  was  it  so  pat  by  Lord  Campbell  in  his  judgment  in  the  court 
below.  But  it  does  not  follow,  merely  because  the  words  of  the  Sd  section  are 
permissive  only,  that  there  is  no  duty  cast  upon  the  plaintitTs  in  error,  by  the 
statute  taken  altogether,  to  make  this  railway.  This  point  was  not  relied  upon 
in  this  case  in  the  court  below,  but  it  was  made  the  distinct  ground  of  a  decision 
in  another  case  in  that  court  (The  Queen  v.  The  Lancashire  &  Yorkshire  Railw. 
Co.),  and  was  much  pressed  in  the  argument  before  us  in  support  of  this  judgment. 
"It  becomes  necessary,  therefore,  to  examine  the  statute  in  its  general  pro- 
visions, and  to  consider  the  grounds  on  which  the  Court  of  Queen's  Bench  pro- 
ceeds in  the  case  of  the  Queen  r.  The  Lancashire  &  Yorkshire  Railw.  Co.,  1  E. 
&  B,  228 ;  16  Eng.  L.  &  Eq.  328.  We  agree  with  Lord  Campbell,  that  the  por- 
tion of  the  line  between  Market  Weighton  and  Cherry  Burton,  to  which  the 
mandamus  applies,  is  not  to  be  considered  as  a  separate  railway,  or  even  as  a 
separate  branch  of  a  railway,  but  it  is  to  be  treated  as  if  in  its  present  direction 
it  had  been  included  in  the  act  of  1846.  The  acts,  then,  taken  together,  in  sub- 
stance, recite  that  it  will  be  an  advantage  to  the  public  if  a  railway  is  made  from 
York  to  Beverley,  through  Market  Weighton  and  Cherrj'  Burton,  according  to 
certain  plans  and  sections  deposited,  as  required  by  the  practice  of  parliament, 
and  referred  to  in  the  statute,  and  that  the  plaintiffs  in  error  are  willing  to  make 
that  railway.  On  this  basis  the  whole  provisions  are  founded.  It  has  been 
proved  that  the  work  will  be  advantageous  to  the  public ;  it  is  assumed  it  will  be 
profitable  to  the  company,  and  that,  therefore,  they  will  willingly  undertake  it. 
Accordingly,  the  company  are  empowered  to  make  this  line.  If  they  do  make 
it  they  may  take  land ;  but  if  they  do  take  land  they  must  make  compensation. 
If  necessar}',  they  may  turn  roads,  or  divert  streams ;  but  if  they  do,  they  must 
make  new  roads  and  new  channels  for  the  streams  they  alter.  Similar  provisions 
pervade  the  whole  statute,  and  throughout  the  command  waits  upon  the  authority, 
and  the  distinction  between  '  may '  and  '  must '  is  clearly  defined.  But  as  it  is 
manifest  that  such  general  powers  must  stop  competition,  and  may,  to  a  certain 
extent,  be  injurious  to  land-owners  on  the  line,  the  compulsory'  power  to  take 
land  is  limited  to  three  years,  and  tlie  time  for  making  the  railway  to  five,  after 
which  the  powers  granted  to  the  company  cease,  except  as  to  so  much  of  the  line 
as  shall  have  been  completed,  and  the  land,  if  taken  by  the  company,  reverts, 
on  certain  terms,  to  the  original  proprietors.  An  argument  might  have  been 
founded  on  the  terms  in  which  the  latter  provision  is  contained.  By  the  10th 
section  of  the  act  of  1849,  it  is  enacted  that  the  railway  shall  be  completed 
within  five  years  from  the  passing  of  this  act.  That  section  was  not  referred  to 
in  the  argument  for  this  purpose,  but  it  might  be  said  that  these  words  were  com- 
pulsory, and  imposed  a  duty  upon  the  company  to  make  the  line.  The  context 
of  the  section,  however,  when  examined,  shows  that  such  is  not  the  meaning  of 
it.  If  not  completed  within  five  years,  the  powers  of  the  act  are  to  expire, 
except  as  to  so  much  of  such  railway  as  shall  have  been  completed.  If  the 
section  were  intended  to  be  obligatory,  it  would  not  contain  that  exception 
whiih  contemplates  that  the  line  may  be  made  in  part.  It  is  inconsistent  to  sup- 
pose that  the  legislature  would  say  to  the  company  in  the  same  section,  you  may 

•265 


632 


MANDAMUS. 


CH.  XXIII. 


*SECTION     III. 


Mandamus  the  appropriate  Remedy  to  restore  Officers  and  Mem- 
bers of  Corporations  to  the  Discharge  of  their  proper  Functions, 
where  they  have  been  deprived  of  the  same  through  the  agency  of 
the  Corporation. 


1.  The  ivrit  formerly  granted  only  to  restore 

to  puldic  office. 

2.  Now  granted  in  all  cases  where  of  value 

and  sufficiently  permanent. 


3.  Not  available,  where  election  annual  and 

facts  traversed. 

4.  Claimant  must  have  permanent  and  vested 

interest. 


§  153.  1.  It  does  not  come  within  the  scope  of  this  work  to  ex- 
amine with  minuteness  all  questions  arising  upon  the  law  of  *  cor- 

complete  a  part  only,  if  you  can,  in  five  years,  and  then  as  to  that  part  the 
powers  of  the  act  shall  continue,  but  you  must  complete  the  entire  line  in  that 
time.  Upon  the  whole,  therefore,  we  find  no  duty  cast  upon  the  company 
to  make  this  railway  in  any  part  of  this  act  of  parliament.  On  the  contrary,  the 
legislature  seems  to  contemplate  the  possibility  of  the  railway  being  made 
in  part,  or  being  totally  abandoned.  In  the  latter  case  the  powers  expire 
in  three  or  five  years ;  in  the  former,  the  statute  remains  in  force  as  to  so  much 
of  the  railway  as  shall  have  been  completed  within  that  time,  and  expires  as  to 
the  residue.  This  provision  is  inconsistent  with  the  intention  to  compel  the  com- 
pany to  make  the  entire  line,  as  the  consideration  for  the  powers  granted  by  the 
act. 

But  it  is  said  that  a  railway  act  is  a  contract  on  the  part  of  the  company  to 
make  the  line,  and  that  the  public  is  a  party  to  that  contract,  and  will  be  ag- 
grieved if  the  contract  may  be  repudiated  by  the  company  at  any  time  before  it 
is  acted  upon.  Though  commonly  so  spoken  of,  railway  acts,  in  our  opinion,  are 
not  contracts,  and  cannot  be  construed  as  such.  They  are  what  they  purport  to 
be,  and  no  more.  They  give  conditional  powers,  which,  if  acted  upon,  carry 
with  them  duties,  but  which,  if  not  acted  upon,  are  not,  either  in  their  nature  or 
by  express  words,  imperative  on  the  companies  to  which  they  are  granted. 
Courts  of  justice  ought  not  to  depart  from  the  plain  meaning  of  the  words  used 
in  acts  of  parliament.  When  they  do,  they  make  but  do  not  construe  the  laws. 
If  it  had  been  so  intended,  the  statute  should  have  required  the  companies  to 
make  the  line  in  express  terms ;  indeed,  some  railway  acts  are  framed  upon  this 
principle ;  and  to  say  that  there  is  no  diflference  between  words  of  requirement 
and  words  of  authority  when  found  in  such  acts,  is  simply  to  affirm  that  the 
legislature  does  not  know  the  meaning  of  the  commonest  expressions.  But  if 
we  were  at  liberty  to  speculate  upon  the  intentions  of  the  legislature  when  the 
words  are  clear,  and  to  construe  an  act  of  parliament  by  our  own  notions  of 
what  ought  to  have  been  enacted  upon  the  subject,  —  if,  sitting  in  a  court  of 
justice,  we  could  make  laws,  much  might  be  said  in  favor  jof  the  course  which, 
in  our  opinion,  is  taken  by  the  legislature  on  such  subjects.  Assuming  that  the 
*  266,  267 


§  153.  BEMEDT   TO   RESTORE   OFFICERS   AND   MEMBERS.  633 

porations,  as  affected  by  the  writ  of  mandamus.  But  it  may  be 
useful  to  state  that  this  is  the  appropriate  remedy,  where  any 

line,  if  made,  would  be  profitable  to  the  public,  that  benefit  may  be  delayed  for 
five  years,  during  which  time  competition  is  suspended.  On  the  other  hand,  if 
the  line  would  pay,  it  probably  will  be  proceeded  with,  unless  the  company 
having  the  power  is  incompetent  to  the  task.  Individual  land-owners  may  be 
benefited  by  the  expenditure  of  capital  in  their  neighborhood,  without  looking 
to  the  ultimate  result ;  but  it  is  not  for  the  public  interest  that  the  work  should 
be  undertaken  by  an  incompetent  company,  nor  that  it  should  be  begun,  if,  when 
made,  it  would  not  be  remunerative.  By  leaving  the  exercise  of  the  powers 
to  the  option  of  the  company,  the  legislature  adopts  the  safest  check  on  abuse  in 
either  of  those  respects,  namely,  self-interest.  It  seems  to  us,  therefore,  that 
these  statutes  do  not  cast  upon  the  plaintiffs  in  error  the  duty,  either  by  express 
words  or  by  implication ;  that  we  ought  to  adhere  to  the  plain  meaning  of  the 
words  used  by  the  legislature,  which  are  permissive  only,  and  there  is  no  reason, 
in  policy  or  otherwise,  why  we  should  endeavor  to  pervert  them  from  their 
natural  meaning. 

"  But  it  is  said  that  the  land-owners  are  in  a  better  situation  than  the  public 
at  large,  and  that  the  privilege  to  take  their  own  lands  is  the  consideration  which 
binds  the  company  to  complete  the  railway.  That  during  the  currency  of  the 
three  years  they  are  deprived  of  their  full  rights  of  ownership,  and,  if  not  to  be 
compensated  by  the  construition  of  the  railway,  they  would  in  many  cases  suffer 
a  loss,  because,  whilst  the  compulsory  power  of  purchase  subsists,  they  are  pre- 
vented from  alienating  their  lands  or  houses  described  in  the  books  of  reference, 
and  from  applying  them  to  any  purposes  inconsistent  with  the  claim  that  may  be 
made  to  them  by  the  railway  company.  In  truth,  they  are  not  prevented  from 
so  doing  at  any  time  before  the  notice  to  take  their  land  is  given,  if  they  act 
bonajide  in  the  mean  time ;  the  notice  to  take  their  lands  being  the  inception  of 
the  contract  between  the  land-owners  and  the  company.  But  if  this  complaint 
was  better  founded,  it  does  not  follow,  becau.se  certain  land-owners  are  subjected 
to  temporarj'  inconvenience  for  the  performance  of  a  public  good,  that  therefore 
the  company  are  bound  to  make  the  whole  railway.  If  it  were  a  contract  be- 
tween the  land-owners  and  the  company,  it  would  not  be  just,  the  one  should  be 
bound  and  the  other  free.  But  to  assert  that  there  is  a  contract  between  the 
land-owners  and  the  company,  is  to  beg  the  whole  question  ;  for  on  this  part  of 
the  case  the  question  is,  whether  there  is  such  a  contract  ?  As  a  matter  of  fact, 
we  know  that  in  many  cases  no  such  actual  contract  exists.  Some  few  proprie- 
tors may  desire  and  promote  the  railway,  but  many  others  oppose  it,  either  from 
disinclination  to  the  project  or  with  a  view  to  make  better  terms.  With  the  dis- 
sentients there  is  no  contract,  unless  it  be  found  in  the  statute,  and  to  the  statute 
therefore  we  must  look  to  see  what  is  the  obligation  that  is  cast  upon  the  company 
in  respect  of  the  land-owners  upon  the  line.  As  in  the  former  case,  the  words 
upon  this  subject  are  permissive  only.  The  company  may  take  land  ;  if  they  do 
they  must  make  full  compensation.  And  in  that  state  of  things,  if  there  be  a 
bargain  between  the  parties,  what  is  the  bargain  ?  The  company  say,  in  the  lan- 
guage of  the  statute,  that  the  bargain  is  that  they  shall  make  full  compensation 
for  the  land  taken,  and  no  more ;  the  prosecutors  say,  that  the  consideration  to 


634  MANDAMUS.  CH.  XXIH. 

*  member  or  officer  of  a  corporation  is  unlawfully  deprived  of  his 
proper  agency  or  function  in  the  affairs  of  the  company  through 

be  paid  for  the  land  is  the  full  compensation  mentioned  in  the  act,  and  also  the 
fbrther  consideration  of  the  construction  of  the  entire  line  of  railway  from  York 
to  Beverley.  But  if  this  is  the  price  which  the  prosecutors  are  to  have,  each  land- 
owner is  entitled  to  the  same  value,  and  yet  by  this  mandamus  the  other  proprie- 
tors on  the  line  from  Market  Weighton  to  Cherry  Burton,  who  perhaps  are  hostile 
to  the  application,  are  constrained  to  sell  their  lands  for  an  inadequate  consid- 
eration, namely,  the  full  compensation  and  a  part  only  of  the  line  of  railway,  to 
which,  by  the  hj-pothesis,  they  were  entitled  by  the  original  bargain.  If  this 
were  the  true  meaning  of  the  statute,  it  would  indeed  be  unjust,  more  so  than 
the  imposition  of  the  temporary-  inconvenience  to  which  it  is  said  the  land-owners 
may  be  subject,  and  to  which  we  have  already  referred.  But  that  that  is  not  the 
true  meaning,  is  clear  from  the  words  of  the  statute,  which  are  permissive,  and 
only  impose  the  dutj'  of  making  full  compensation  to  each  land-owner,  as  the 
option  of  taking  the  land  of  each  is  exercised ;  and  further,  from  the  section  to 
which  we  have  already  referred,  which  contemplates  the  total  abandonment  of 
the  line,  or  a  part  performance  of  it,  and  makes  provision  for  the  return  of  the 
land  to  the  original  proprietors  in  certain  cases.  Upon  this  part  of  the  case  the 
authority  of  Lord  Eldon,  in  Blakemore  v.  The  Glamorganshire  Canal  Company, 
1  Myl.  &  K.  154,  was  much  pressed  upon  the  court.  Speaking  of  contracts  for 
private  undertakings  he  says :  '  When  I  look  upon  these  acts  of  Parliament  I  re- 
gard them  all  in  the  light  of  contracts  made  by  the  legislature  on  behalf  of  every 
person  interested  in  any  thing  to  be  done  under  them,  and  I  have  no  hesitation 
in  asserting  that,  unless  that  principle  be  applied  in  construing  statutes  of  this 
description,  they  become  instruments  of  greater  oppression  than  any  thing  in  the 
whole  system  of  administration  under  our  constitutiorf.  Such  acts  of  Parliament 
have  now  become  extremely  numerous,  and  from  their  number  and  operation 
they  so  much  afiFect  individuals,  that  I  apprehend  those  who  come  for  them  to 
Parliament  do,  in  effect,  undertake  that  they  shall  do  and  submit  to  whatever  the 
legislature  empowers  and  compels  them  to  do,  and  that  they  shall  do  nothing  else ; 
that  they  shall  do  and  forbear  all  that  they  are  hereby  required  to  do  and  for- 
bear, as  well  with  reference  to  the  interest  of  the  public  as  with  regard  to  the 
interest  of  individuals.'  There  is  nothing  in  that  language  to  which  it  is  neces- 
sary to  make  the  least  exception ;  indeed  it  is  nothing  more  than  an  illustration 
of  the  obligatory  nature  of  the  duty  imposed  by  acts  of  Parliament,  which  do  im- 
pose a  duty  with  reference  to  other  persons.  In  that  case  the  statute  had  secured 
to  Mr.  Blakemore  the  surplus  water,  and  had  commanded  the  company  to  do 
certain  things  that  he  might  enjoy  it.  In  discussing  whether  Air.  Blakemore's 
right  under  the  statute  was  affected  by  his  right  before  the  statute,  his  lordship 
might  well  say  he  considered  the  statute  the  origin  of  Mr.  Blakemore's  right  in 
the  light  of  a  contract,  and  the  statute  then  under  discussion  containing  express 
words  of  command,  he  might  well  add,  that  those  who  come  for  such  acts  of  Par- 
liament do,  in  effect,  undertake  that  they  shall  do  and  submit  to  whatever  the 
legislature  empowers  and  compels  them  to  do.  As  we  understand  them,  the 
words  used  by  Lord  Eldon  in  no  respect  conflict  with  the  view  we  take  of  this 
case ;  but  if  they  mean  that  words  of  permission  only,  when  used  in  the  class  of 
♦268 


§  153.  REMEDY  TO   RESTORE  OFFICERS   AND   MEMBERS.  635 

*  its  agency.  This  is  somewhat  questioned  by  some  of  the  earlier 
English  cases.^ 

cases  under  consideration,  should  receive  a  construction  different  from  their 
ordinary  meaning,  because,  if  construed  otherwise,  they  might  work  injustice,  with 
great  respect  for  his  high  authority,  we  dissent  from  that  proposition.  We  agree 
with  my  brother  Alderson,  who,  in  Lee  r.  Milner,  2  Y.  &  Coll,  611,  said :  '  These 
acts  of  Parliament  have  been  called  parliamentarj'  bargains,  made  with  each  of 
the  land-owners.  Perhaps  more  correctly  they  ought  to  be  treated  as  condi- 
tional powers  given  by  Parliament  to  take  the  lands  of  the  different  proprietors 
through  whose  estates  the  works  are  to  proceed.  Each  land-owner,  therefore, 
has  the  right  to  have  the  power  strictly  and  literally  carried  into  effect  as  regards 
his  own  land,  and  has  the  right  also  to  require  that  no  variations  shall  be  made 
to  his  prejudice  in  the  carrj'ing  into  effect  a  bargain  between  the  undttrtakers 
and  any  one  else.'  — '  This,'  he  adds,  '  I  conceive  to  be  the  real  view  taken  of  the 
law  by  Lord  Eldon,  in  the  case  of  Blakemore  v.  The  Glamorganshire  Canal  Com- 
pany.' There  remains  but  one  further  view  of  the  case  to  be  considered,  and 
that  we  have  partly  disposed  of  in  the  observations  we  have  already  made ;  but 
inasmuch  as  Lord  Campbell  proceeded  on  this  ground  only  in  tlie  court  below, 
although  it  was  not  much  relied  upon  before  us  in  the  argument,  we  have,  out  of 
respect  for  his  high  authority,  most  carefully  examined  it,  and  arc  of  opinion 
that  the  mandamus  cannot  be  supported,  on  the  ground  that  the  railway  com- 
pany, having  exercised  some  of  their  powers  and  made  a  part  of  their  line,  are 
bound  to  make  the  whole  railway  authorized  by  their  statutes. 

"It  is  unnecessary  here  to  determine  the  abstract  proposition,  that  a  work 
which,  before  it  is  begun,  is  permissive,  is,  after  it  is  begun,  obligatory.  We 
desire  not  to  be  understood  as  assenting  to  the  proposition  of  my  brother  Erie, 
that  many  cases  may  occur  where  the  exercise  of  some  compulsory  powers  may 
create  a  duty  to  be  enforced  by  mandamus ;  and,  on  the  other  hand,  we  do  not  say 
that  such  may  not  be  the  law.  If  a  company,  empowered  by  act  of  parliament 
to  build  a  bridge  over  the^Thames,  were  to  build  one  arch  only,  it  would  be  well 
desen'ing  consideration  whether  they  could  not  be  indicted  for  a  nuisance  in 
obstructing  the  river,  or  for  the  non-performance  of  duty  in  not  completing  the 
bridge.  It  is  sufficient  to  say  that  in  this  case  there  are  no  circumstances  to 
raise  such  a  duty,  if  such  a  duty  can  be  created  by  the  acts  of  plaintiff  him- 
self. The  plaintiffs  in  error  have  made  the  principal  portion  of  their  line,  and 
they  have  abandoned  the  residue  for  no  corrupt  motive,  but  because  Beverley 
has  already  sufficient  railway  communication,  and  because  the  residue  of  the  line 
passes  through  a  countr}'  thinly  populated,  and  if  made  would  not  be  remuner- 
ative. But  it  is  said  that  the  railway  company  are  not  in  the  situation  of  pur- 
chasers of  land,  with  liberty  to  convert  it  to  any  purpose,  or  to  allow  it  to  be 
waste :  that  they  are  allowed  to  purchase  it  only  for  a  railway,  and  having  ac- 
quired it  under  the  compulsory  power  of  the  act,  there  must  be  an  obligation 
upon  the  company  to  apply  the  land  to  that,  and  to  no  other  purpose.  Subject 
to  the  qualification  in  the  act,  this  is  undoubtedly  true.     Having  acquired  the 


•  Vaughn  v.  Company  of  Gunmakers,  6  Mod.  82 ;  S.  P.  Comb.  46 ;  White's 
case,  6  Mod.  18. 

•269 


636  MANDAMUS.  CH.  XXIII. 

*  2.  But  a  different  rule,  as  to  requiring  the  office  to  be  of  a  pub- 
lic nature  to  justify  the  writ  of  mandamus  to  restore  the  *  party  to 

lands  of  particular  land-owners,  the  company  could  not  retain  them  by  merely 
laying  rails  on  the  lands  so  taken,  and  we  agree  it  never  was  intended  that  the 
land-owners  should  be  left  with  a  high  mound  or  a  deep  cutting  running  through 
their  estate,  and  leading  neither  to  nor  from  any  available  terminus.  The  pre- 
caution against  such  a  wasteful  expenditure  of  capital  may,  perhaps,  safely  be 
left  to  the  self-interest  of  the  company,  but  if  such  work  were  be  done,  it 
would  not  be  a  practicable  railway,  and  after  five  years  the  powers  of  the  act 
would  expire,  and  the  land  revest  in  the  original  proprietor.  It  is  true  that  he 
would  sustain  some  inconvenience  without  the  corresponding  advantage  of  rail- 
way communication,  but  in  the  mean  time  he  would  have  received  full  compen- 
sation in  the  market  value  of  the  land,  and  for  all  damage  by  severance  or 
otherwise,  and  would  receive  back  the  land  on  more  reasonable  terms.  To  be 
a  railway  it  must-  have  available  termini.  When  the  statutes  passed,  all  persons 
supposed  the  termini  would  be  York  and  Beverley ;  and  if  the  arguments  be  well 
founded,  and  the  company  are  bound,  if  they  take  the  land  upon  any  portion  of 
the  railway,  to  complete  the  whole  line,  it  would  seem  to  follow  that  one  of  the 
proprietary,  by  compelling  the  company  to  take  his  land  on  the  line  from  Market 
Weighton  to  Cherry  Burton,  would  thus  entitle  himself  to  a  mandamus  to 
compel  them  to  make  the  line  from  Cherry  Burton  to  Beverley,  and  the  acts 
having  expired,  to  apply  to  Parliament  for  a  renewal  of  their  powers  for  that 
purpose.  But  although  the  termini  were  originally  intended  to  be  York  and 
Beverley,  it  is  plain  that  the  legislature  contemplated  the  possibility  of  the  line 
being  abandoned  or  being  only  partially  made,  because  in  the  one  case  the  powers 
of  the  act  were  to  cease,  and  in  the  other  they  were  partially  continued.  An 
option,  therefore,  is  given  to  some  one.  By  the  course  taken  the  Court  of  Queen's 
Bench  has  exercised  that  option,  and  said  the  line  is  to  be  made,  not  to  Beverley, 
but  to  Cherry  Burton.  In  our  opinion  that  option  is  left  to  the  company,  and 
the  company  having  bona  fide  made  an  available  railway  over  the  land  taken, 
the  obligation  to  the  land-owner  has,  in  that  respect,  been  fulfilled.  The  cases 
upon  this  subject  are  very  few,  and  the  absence  of  authority  is  very  striking, 
when  we  remember  how  many  acts  have  passed  in  pari  materia,  not  only  for 
railways,  but  also  for  bridges  and  turnpike  roads.  Notwithstanding  the  numer- 
ous occasions  on  which  such  proceedings  might  have  been  taken,  and  the  mani- 
fest interest  of  land-owners  to  enforce  their  rights,  no  instance  can  be  found  of 
an  indictment  for  disobeying  such  a  statute,  or  of  a  mandamus  for  the  purpose  of 
enforcing  it.  If  correctly  reported.  Lord  Mansfield  determined  this  point  in 
The  King  v.  The  Proprietors  of  the  Birmingham  Canal,  2  Wm.  B.  708,  for  he 
says  the  act  imports  only  an  authority  to  the  proprietors,  not  a  command.  They 
may  desert  or  suspend  the  whole  work,  and,  it  fortiori,  any  part  of  it.  On  the 
other  side,  the  language  of  Lord  Eldon,  in  Blakemore  v.  The  Glamorganshire 
Canal  Company,  is  referred  to  as  an  authority  for  this  mandamus.  In  our  opin- 
ion it  does  not  bear  that  construction,  although  it  appears  that  the  Court  of 
Queen's  Bench  took  a  different  view  of  that  authority  in  the  case  of  The  Queen 
V.  The  Eastern  Counties  Railw.  Company,  10  Ad.  »&  Ell.  531,  and  was  inclined 
to  act  upon  it,  and  award  a  mandamus.  The  writ  was  subsequently  withheld  in 
•  270,  271 


§  153.  REMEDY   TO    RESTORE   OFFICERS   AND   MEMBERS.  637 

it,  seems  to  have  obtained  since  the  case  of  Rex  v.  Baker,^  and  the 
only  proper  inquiry  now  is  whether  the  plaintiff  has  any  such  val- 
uable and  pernaanent  interest  in  the  office  or  place  as  to  justify  the 
granting  of  the  writ.^ 

*  8.  It  was  held,  in  an  early  case*  in  Massachusetts,  that  this' 
remedy  could  not  be  rendered  available  in  cases  where  the  office 
only  extended  to  one  year,  and  the  question  arising  upon  the  re- 
turn of  the  writ  was  one  of  fact,  the  traverse  to  whicli  could  not, 
according  to  the  course  of  practice  in  that  court,  be  determined 
before  the  term  of  the  office  would  expire.  "  The  cases,  there- 
fore," say  the  court,  "  in  which  the  writ  of  mandamus  may  be  an 
adequate  remedy,  in  admitting  or  restoring  to  office,  seem  to  be 
where  the  office  is  holden  for  a  longer  term  than  a  year,  or  where 
the  return  to  the  writ  will  involve  merely  a  question  of  law,  so  that, 
admitting  the  facts  to  be  true,  a  peremptory  mandamus  ought 
to  go." 

4.  It  was  accordingly  held,  in  a  very  late  English  case,^  that,  as 
mandamus  to  reinstate  a  person  in  office  only  lies  where  the  office 
and  its  tenure  are  of  a  permanent  nature,  it  is  not  an  available 
remedy  for  the  secretary  of  a  benefit  society,  who  had  been  dis- 
missed by  a  resolution  of  a  meeting  of  the  society.  The  court 
here  seem  to  consider  that  the  office  must  be  of  such  a  character 
that  the  incumbent  has  such  a  vested  and  permanent  interest  in 
the  same  as  that  the  court  could  render  the  operation  of  the  writ 
of  mandamus  effective  towards  restitution,  and  where  its  operation 
is  not  liable  to  be  countervailed  by  any  counter  agency. 

that  case  on  another  ground,  but  Lord  Denman  seems  to  have  been  of  opinion 
that  on  a  fit  occasion  a  mandamus  ought  to  go.  That,  and  the  recent  cases  in 
the  Queen's  Bench,  now  under  discussion,  are  the  only  cases  which  bear  upon 
the  subject.  We  feel  that  Lord  Denman  and  Lord  Campbell  are  high  authori- 
ties upon  this  or  any  other  matter,  and  are  both  equally  entitled  to  the  respect 
of  this  court ;  but  we  are  bound  to  pronounce  our  own  judgment,  and,  after  the 
most  careful  consideration,  are  of  opinion  that  the  judgment  ought  to  be  for  the 
plaintiffs  in  error.  The  result  is,  that  the  judgement  of  the  Court  below  must  be 
reversed." 

•  3  Burrows,  1267. 

»  Angell  &  Ames,  §§  704,  705. 

*  Howard  r.  Gage,  6  Mass.  462,  464. 

»  Evans  t.  The  Heart  of  Oak  Benefit  Society,  12  Jur.  N.  S.  163. 

•272 


638 


MANDAMUS. 


CH.  XXIII. 


SECTION    IV. 


Mandamus  to  compel  Company  to  complete  their  Road. 


1.  English  courts  have  r&juired  this  upon  a 

general  grant. 

2.  But  these  cases  otxrruled.     Not  required 


now,   unless    undei-   peculiar    circum- 
stances. 
3.   Recent  case  in  New  York  court  of  appeals. 


§  154.  1.  The  English  courts  at  one  time,  it  would  seem,  re- 
garded a  parliamentary  grant  to  a  railway  company  as  equiva- 
lent to  an  agreement  on  their  part  to  build  the  road.  To  make 
this  intelligible  to  the  American  reader  it  is  necessary  to  keep  in 
mind  the  English  parliamentary  rules,  in  regard  to  passing  acts  *  of 
incorporation  of  such  companies.  The  promoters  are  required  to 
prepare  plans  and  sections,  and  maps  of  their  roads,  with  the  line 
delineated  thereon,  so  as  to  show  its  general  co\irse  and  direction, 
and  to  deposit  copies  of  the  same  with  the  clerks  of  the  peace,  in 
the  office  of  the  Board  of  Trade,  the  Private  Bill  Office,  in  certain 
cases  at  the  Board  of  Admiralty,  and  with  the  parish  clerk  of  each 
parish  through  which  the  proposed  line  passes,  before  parliament 
assembles,  and  the  plans  are  usually  referred  to  in  the  charter  as 
defining  the  course  of  such  railway,  and  thus  become  binding  upon 
the  company,  although  not  so  regarded  unless  so  referred  to.^ 
Specific  notice  too  is  to  be  served  upon  each  land  proprietor  whose 
land  is  to  be  taken.^  There  is  therefore  some  plausibility  in  re- 
garding the  obtaining  of  a  charter  under  these  circumstances  as  a 
binding  obligation  on  the  part  of  the  company  that  they  will  build 
the  road.  No  act  of  incorporation  of  a  railway  is  passed  in  the 
British  parliament  until  three-fourths  of  the  estimated  outlay  is 
subscribed.  Accordingly,  in  some  of  the  earlier  cases  upon  this 
subject,  after  considerable  discussion  and  examination,  it  is  laid 
down,2  that  when  a  railway  company  have  obtained  an  act  of  par- 

*  Hodges  on  Railways,  18,  and  notes ;  North  British  Railw.  Company  v.  Tod, 
6  Bell  Ap.  Cas.  184 ;  s.  c.  4  Railw.  Cas,  449 ;  Reg.  v.  The  Caledonian  Railw. 
Co.,  3  Eng.  L.  &  Eq.  285. 

*  The  Queen  v.  The  York  &  North  Midland  Railw.  Co.,  16  Q.  B.  19 ;  s.  c. 
16  Eng.  L.  &  Eq.  299.  This  case  was  decided  by  a  divided  court,  Erie,  J.,  dis- 
senting, whose  opinion  ultimately  prevailed  in  the  Exchequer  Chamber.  Lord 
Campbell,  Ch.  J.,  and  the  majority  of  the  court,  founded  their  opinion  chiefly 
upon  the  celebrated  judgment  of  Lord  Eldon,  in  Blakemore  v.  The  Glamorgan- 
shire Canal  Navigation,  1  Mylne  &  Keen,  154.  See  also  Reg.  v.  Ambergate,  &c. 
Railw.  Co.,  23  Law  Times,  246  ;  s.  c.  17  Q.  B.  362,  967  ;  Reg.  v.  Eastern  Counties 

*273 


§  154.     COMPEL  COMPANY  TO  COMPLETE  THEIR  ROAD.       639 

liament,  reciting  that  the  proposed  railway  will  he  beneficial  to  the 
public,  aiid  that  the  company  are  willing  to  execute  it,  and  giving 
them  compulsory  powers  upon  landholders  for  that  purpose,  and 
in  pursuance  of  such  powers  the  company  have  taken  land,  and 
made  part  of  their  line,  they  are  bound  by  law  to  complete  such 
line,  not  only  to  the  extent  which  they  have  taken  lands,  but  to 
the  furthest  point.  And  this  is  so  held  in  some  cases,  although 
the  statute  enacts  only  that  it  shall  be  lawful  for  them  to  make  the 
railway. 

*  2.  So  also  in  another  case,^  where  the  undertaking  was  not  yet 
entered  upon,  it  was  held  that  the  company  under  such  circum- 
stances were  bound  to  execute  the  work,  from  the  time  when  such 
act  receives  the  royal  assent.  And  in  another  case,*  where  by  the 
return  to  the  writ  it  appeared  that  the  company  had  no  sufllicient 
funds  to  build  the  road,  and  that  the  period  for  exercising  their 
compulsory  powers  in  obtaining  lands  had  expired,  and  that  the 
building  of  the  road  had  thus  become  impossible,  it  was  held  that 
a  mandamus  must  nevertheless  be  awarded.  Writs  of  peremptory 
mandamus  issued  in  each  of  the  foregoing  cases.  But  the  first 
and  last  of  these  three  cases  came  before  the  Exchequer  Chamber, 
and  were  heard  at  great  length  before  all  the  judges,  and  an  elab- 
orate opinion  delivered  by  Jervis,  Ch.  J.,  of  the  Common  Bench, 
reversing  the  judgment  of  the  Queen's  Bench,  chiefly  on  the  ground 
that  there  was  no  implied  obligation  upon  the  company,  either  be- 
fore or  after  entering  upon  the  work,  to  complete  it.^ 

Railw.,  1  Railw.  C.  609.  But  the  writ  was  held  defective  in  this  case,  in  not 
alleging  that  the  company  had  abandoned  or  unreasonably  delayed  the  work. 
Reg.  V.  Same,  2  Railw.  C.  260 ;  8.  c.  10  Ad.  &  El.  631 ;  2  Q.  B.  347,  669. 

'  Reg.  V.  The  Lancashire  and  Yorkshire  Railw.  Co.,  7  Railw.  Cas.  266  ;  s.  C. 
16  Eng.  L.  &  Etj.  327. 

*  Reg.  V.  Great  Western  Railw.  Co.,  16  Eng.  Law  &  Eq.  341.  The  extreme 
to  which  this  ver}'  questionable  doctrine  was  pushed  in  this  case,  seems  to  have 
proved,  as  is  not  uncommon  in  such  cases,  the  point  of  departure,  for  its  entire 
overthrow  and  abandonment. 

*  York  &  North  Midland  Railw.  Co.  c.  Reg.,  1  El.  &  Bl.  ^58 ;  8.  c.  18  Eng. 
L.  &  Eq.  199 ;  Great  Western  Railw.  Co.  v.  Same,  1  El.  &  Bl.  874.  These  de- 
cisions, rendered  (in  April,  18.")3),  one  of  which  is  given  at  length  in  the  last 
section,  seem  to  have  been  acquiesced  in,  and  they  certainly  conform  to  what  has 
ever  been  regarded  as  the  law  upon  that  subject  in  this  country.  And  the  same 
principle  was  maintained  in  Scottish  Northeastern  Railw.  r.  Stewart,  3  McQueen's 
H.  L.  Cases,  382 ;  8.  c.  5  Jur.  N,  S.  607.  But  see  Lind  v.  Isle  of  Wight  Ferry 
Co.,  7  Law  Times,  N.  S.  416 ;  Mason  v.  Stokes  Bay  Pier  &  Railw.  Co.,  11  W. 

•274 


640 


MANDAMUS. 


eg.  XXIII. 


3.  This  question  arose  and  was  examined  in  the  courts  of  New 
York,  somewhat,  in  a  late  case,^  where  it  was  held  that  a  railway 
corporation,  which  has  completed  its  road  between  the  termini 
named  in  the  charter,  forfeits  its  franchise  by  *  abandoning  or 
ceasing  to  operate  a  part  of  the  route.  The  remedy,  however,  in 
such  cases,  is  not  by  injunction  at  the  suit  of  the  public,  but  by 
mandamus  or  indictment  at  the  election  of  the  state,  or  by  proceed- 
ing to  annul  the  charter  of  the  corporation. 

It  is  here  said,  that  it  seems  that  the  corporation  owes  a  duty 
to  the  public  to  exercise  the  franchise  granted  to  it,  and  that  it 
cannot  abandon  a  portion  of  its  road  and  incur  a  forfeiture  at  its 
mere  pleasure. 


SECTION   V. 


In  what  Cases  this  is  the  'proper  Remedy. 


1.  Where  the  act  is  imperative  upon  the  com- 

pany to  build  road. 

2.  Mandamus  more  proper  remedy  than  in- 

junction. 

3.  Commissioners  of  public  works  not  liable 

to  this  lorit. 

4.  Public  duties  of  corporations  may  be  so  en- 

forced. 
6.  Facts  tried  by  jury.     Instances  of  this 
remedy. 


6.  Cannot   be    substituted  for    certiorari, 
when  that  is  taken  awny. 

7.  Requiring  costs  to  be  allowed. 

8.  Other  instances  of  its  application. 

9.  Lies  where  the  duty  is  clear,  and  no  other 
remedy. 

10.  Not  awarded  to  control  legal  discretion. 

11.  Does  not  lie  to  try  the  legality  of  an  elec- 
tion. 

12.  Lies  to  compel  transfer  of  stock. 

§  155.  1.  But  although  it  must  be  regarded  as  now  definitively 
settled  that  the  writ  will  not  lie,  in  any  case,  coming  within  the 
categories  laid  down  in  the  foregoing  opinion  of  Jervis,  Ch.  J., 
yet  wliere  the  act  of  the  legislature  is  imperative  upon  the  com- 
pany to  build  their  road,  this  duty  will  still  be  enforced  by  man- 
damus.^ 

K.  80.  It  is  here  held,  that  where  a  notice  from  a  railway  company  to  take 
lands  for  the  purposes  of  their  undertaking  has  been  followed  by  an  award  fix- 
ing the  amount  of  purchase  and  compensation-money,  the  court  has  jurisdiction 
to  compel  the  company  to  complete  the  purchase.  S.  P.  Metropolitan  Railw. 
V.  Woodhouse,  11  Jur.  N.  S.  296;  s.  c.  34  L.  J.,  Ch.  297.  But  see  Quicke  ex 
parte,  13  W.  R.  924;  8.  c.  12  L.  T.  N.  S.  113. 

6  The  People  v.  The  Albany  &  Vermont  Railw.,  24  N.  Y.  261;  s.  c.  37 
Barb.  216. 

'  Hodges  on  Railways,  665,  in  note ;  Great  Western  Railw.  Company  v.  Reg. 
Excheq.  Ch.  1853.  1  El.  &  Bl.  874;  s.  c.  18  English  Law  &  Eq.  211.  The 
land-owners  are  so  far  interested  in  the  building  of  a  railway  as  to  be  entitled 
*275 


§  155.  IN  WHAT  CASES  THIS   IS  THE  PROPER  REMEDY.  641 

*  2.  But  it  has  been  held  that  such  public  duty  cannot  be  enforced 
by  injunction,  at  the  suit  of  the  attorney-general.*  Corporations 
have  for  a  very  long  time  been  compelled,  by  writ  of  mandamus, 
to  perform  duties  imposed  by  statute.'  A  turnpike  company  was 
compelled  to  fence  its  road  where  it  passed  through  the  land  of 
private  persons,  and  it  was  held  no  excuse  that  the  company  had 
made  satisfaction  for  the  damages  awarded  to  the  land-owner,  or 
that,  having  completed  their  road,  they  had  no  funds  with  which  to 
build  the  fences.* 

3.  But  it  has  been  held,  that  Commissioners  of  Woods  and  For- 

to  bring  the  petition,  and  different  owners  of  land  may  join.  Reg.  v.  York  and 
North  Midland  Railw.  IG  Eng,  L.  &  Eq.  299.  But  it  has  been  held,  that  a  land- 
owner could  not  apply  for  an  injunction  to  restrain  a  railway  company  from  ap- 
plying for  an  act  of  the  legislature  repealing  a  former  act,  and  to  restrain  them 
from  paying  back  deposits.  Hodges  on  Railways,  657,  note ;  Anstruther  v. 
East  Fife  Railw.,  1  McQueen,  Ho.  Lds.  98.  Nor  can  a  land-owner  maintain 
a  suit  in  equity  against  a  company  for  not  completing  their  line,  in  pursuance 
of  tljeir  act  of  incorporation.  Heathcote  v.  North  Staffordshire  Railw.  Com- 
pany, 6  Railw.  C.  358.  The  Lord  Chancellor  here  held,  reversing  the  opinion 
of  the  Vice-Chancellor,  that  in  such  case,  a  court  of  equity  will  leave  the  party 
to  his  legal  rights.  Reg.  v.  Dundalk  &  Enniskillen  Railw.,  6  L,  T.  N.  S.  26; 
Lind  V.  Isle  of  Wight  Ferry  Co.,  7  L.  T.  N.  S.  416 ;  State  v.  Hartford  and 
New  Haven  Railw.,  29  Conn,  638.  And  mandamus  is  the  proper  remedy  by 
which  to  compel  a  canal  company  to  bridge  over  a  private  way  which  it  in- 
tersects.    Habersham  v.  Savannah,  &c.  Canal  Co.,  26  Georgia,  665. 

*  Attorney-General  v.  Birmingham  &  Oxford  Junction  Railw.,  and  two  other 
Companies,  3  Mac.  &  G.  463 ;  8.  c.  7  Eng.  L.  &  Eq.  283. 

'  The  Hartford  &  New  Haven  Railway  Company  was  chartered  to  construct 
and  operate  a  railroad  from  Hartford  to  the  navigable  waters  of  the  harbor  of 
New  Haven.  A  steamboat  company  was  afterwards  chartered  to  run  in  con- 
nection with  it  to  New  York ;  and  the  railway  and  steamboat  line  constituted  a 
route  that  was  of  great  convenience  to  the  public.  After  the  construction  of  the 
road  and  the  use  of  it  in  connection  with  the  steamboat  line  for  several  years, 
the  railroad  company  constructed  a  track  diverging  from  its  original  track  at  a 
point  a  mile  and  a  half  from  tide-water  and  running  to  the  station  of  the  New 
York  &  New  Haven  railway  company,  in  the  city  of  New  Haven,  and  discon- 
tinued the  running  of  its  passenger  trains  to  its  original  terminus  at  tide-water. 
This  change  incommoded  travellers  who  wished  to' pass  by  the  steamboat  route, 
of  whom  there  were  many.  Held,  that  a  mandamus  ought  to  be  issued  to  com- 
pel the  company  to  run  passenger  trains  to  its  original  terminus,  and  that  the 
mandamus  was  properly  applied  for  by  the  attorney  for  the  state.  State  v.  Hart- 
ford &  New  Haven  Railw.,  29  Conn.  638. 

*  Reg.  V.  Trustees  Luton  Roads,  1  Q.  B.  860.  Lord  Denman,  Ch.  J.,  said, 
'*  The  law  orders  these  parties  to  perform  the  duty  if  they  build  the  road."  Pai- 
teson,  J.,  said,  "  If  they  had  not  adequate  funds  they  ought  not  to  have  made  the 
road." 

41  •  276 


642  MANDAMUS.  CH.  XXIII. 

ests,  who  gave  notice  that  they  intended  to  take  certain  lands,  in 
order  to  ascertain  if  they  could  be  obtained  at  a  certain  price,  and 
fuidiug,  by  the  claim  of  the  land-owners,  that  the  land  could  not 
be  obtained,  so  as  to  bring  the  amount  to  be  expended  within  the 
legislative  limit,  and  the  funds  at  the  disposal  of  the  •commission- 
ers, abandoned  their  notice,  could  not  be  compelled  by  mandamus 
to  take  the  land,  such  commissioners  acting  in  a  public  capacity, 
although  the  rule  is  otherwise  as  to  private  railway  companies.^ 

4.  Public  duties  of  corporations  have  been  enforced  by  man- 
damus, as  repairing  the  channel  and  banks  of  a  river,  which,  by 
their  charter,  they  had  been  permitted  to  alter.^  Also  to  make 
alterations  in  the  sewers  of  a  city ;  and  where,  in  the  act  of  parlia- 
ment, this  duty  is  defined,  "  to  make  such  alterations  and  amend- 
ments in  the  sewers  as  may  be  necessary  in  consequence  of  the 
floating  of  the  harbor,"  it  was  held  this  was  a  proper  form  for  the 
command  of  the  writ.'^  Also  to  restore  a  highway,  intersected  by 
a  railway,  to  its  former  width.^ 

*  Reg.  ».  Commissioners  of  Woods  and  Forests,  15  Q.  B.  761 ;  Ante,  §  88. 

«  Reg.  r.  Bristol  Dock  Company,  1  Railw.  C.  548,  2  Q.  B.  64,  2  Railw.  C. 
699.  A  return  that  the  law  imposed  no  such  duty,  but  that  they  had  per- 
formed it,  "as  near  as  circumstances  permitted,"  is  insufficient,  as  being  a  tra- 
verse of  the  law,  or  an  evasion  of  the  writ.  Reg.  v.  Caledonian  Railw.,  16  Q. 
B.  19 ;  8.  c.  3  Eng.  L.  &  Eq.  285. 

'  The  King  v.  The  Bristol  Dock  Company,  6  Bam.  &  Cress.  181.  Man- 
damus is  the  appropriate  remedy  to  compel  a  delinquent  municipal  corporation 
to  discharge  its  liabilities  under  a  subscription  to  stock  of,  or  a  loan  of  its  credit 
to,  a  railroad  company.  Commonwealth  v.  Perkins,  43  Penn.  St.  400.  A  dec- 
laration for  a  mandamus  to  levy  a  rate  to  pay  a  debt  is  good,  though  it  does 
not  state  the  amount  of  the  debt.  Ward  v.  Lowndes,  6  Jur.  N.  S.  247  ;  s.  c. 
29  L.  J.,  Q,  B.  40;  Ellis  &  Ellis,  940.  But  see  McCoy  v.  Harnett  Countj', 
6  Jones  Law,  265.  But  in  Austin,  ex  parte,  13  Law  Times,  N.  S.  443,  it  was 
held  that  the  court  will  not  in  the  first  instance  grant  a  rule  for  a  mandamus 
calling  on  a  public  order  to  make  a  rate  for  the  payment  of  costs  due  to  a  suc- 
cessful appeal  against  a  rate  which  had  been  quashed  at  quarter  sessions. 
After  the  order  for  paj-ment  of  costs  is  found  good,  if  it  is  still  disobeyed,  a 
mandamus  may  be  called  for.  Austin,  ex  patie,  sttpra.  See  People  v.  Mead, 
24  N.  Y.  114. 

Mandamus  wiU  lie  to  compel  a  town  committee  to  pay  their  damages  to  land- 
owners for  lands  taken  for  a  highway.  Minhinnah  v.  Haines,  5  Dutch,  388 ; 
State  r.  Keokuk,  9  Iowa,  438.  And  see  State  v.  County  Judge,  12  Iowa,  237; 
State  V.  Davenport,  id.  335 ;  Knox  County  v.  Aspinwall,  24  How.  (U.  S.)  376 ; 
Uniontown  v.  Commonwealth,  34  Penn.  St.  293 ;  Commonwealth  v.  Pittsburg, 
id.  496. 

»  Reg.  V.  Birmingham  &  Gloucester  Railw.,  2  Railw.  C.  694 ;  2  Q.  B.  47  ;  Reg. 
♦277 


§  155.  IN  WHAT  CASES  THIS  IS  THE   PROPER  REMEDY.  643 

5.  Ill  the  English  practice,  questions  of  fact,  arising  on  a  *  man- 
damus, are  tried  by  a  jury.*^  So  a  railway  company  may,  by 
mandamus,  be  required  to  establish  an  uniform  rate  of  toUs.^® 
And  also  to  proceed  in  the  appraisal  of  land  damages,  after  giving 
notice  to  treat."  So  the  sheriff  or  officer  who  holds  the  inquisition, 
may  be  compelled  to  proceed  where  he  has  no  legal  excuse,  as 
where  such  officer  assumed  to  direct  a  verdict  against  the  claim,  on 
the  ground  the  applicant  could  not  recover.^^ 

6.  But  where  the  statute  in  terms  takes  away  the  remedy  by 
certiorari,  the  court  will  not  indirectly  accomplish  the  same  thing 
by  mandamus.*^ 

7.  A  mandamus  was  awarded  requiring  the  presiding  officer 
to  allow  costs  in  a  case  before  him,"  for  assessing  land  dam- 
ages, including  witnesses,  attendance  by  attorney  at  the  inquest, 

p.  Manchester  &  L.  Railw.,  1  Railw.  C.  523;  3  Q.  B.  528;  2  Railw.  C.  711. 
But  in  some  cases  it  is  requisite  the  dut}'  should  be  strictly  defined.  Reg.  ».  The 
Eastern  Counties  Railw.,  3  Railw.  C.  22  ;  2  Q.  B.  569. 

'  Reg.  r.  London  *&  Birmingham  Railw.,  1  Railw.  C.  317 ;  Reg.  v.  Manch.  & 
Leeds  Railw.,  3  Q.  B.  628;  8.  c.  2  Railw.  C.  711;  Reg.  p.  Newcastle-upon- 
Tj-ne,  1  East,  114. 

"  Clarke  r.  L.  &  N.  Union  Canal,  6  Q.  B.  898.  But  in  this  case  judgment 
was  given  for  defendant,  by  reason  of  the  "  insufficiency  of  the  writ." 

"  Ante,  §§  88,  99,  et  seq.  and  cases  there  cited. 

'*  Walker  r.  The  London  &  Blackwall  Railw.,  3  Q.  B.  744.  In  Carpenter 
p.  Bristol,  21  Pick.  258,  which  was  where  county  commissioners  refused  to  assess 
damages  sustained  in  consetjuence  of  constructing  a  railway,  on  the  ground  that 
the  party  applying  did  not  own  the  land,  and  also  refused  to  grant  a  warrant  for 
a  jury  to  revise  their  judgment,  as  required  by  R.  S.  ch.  39,  §  56 :  Held,  that 
the  party  was  entitled  to  a  jury  to  revise,  and  that  a  mandamus  would  lie  to  com- 
pel the  commissioners  to  grant  a  warrant. 

The  court  say,  "  Where  application  was  made  to  county  commissioners  to  esti- 
mate damages  caused  by  the  laying  out  of  a  railway,  turnpike,  or  highway,  the  duty 
required  of  them  would  be  a  judicial  duty.  If  they  refused  or  neglected  to  per- 
form it,  this  court  would  issue  a  mandamus  commanding  them  to  do  it ;  that  is,  to 
exercise  their  judgment  on  the  matter.  But  when  they  had  performed  this  duty, 
it  being  within  their  discretion,  no  other  tribunal  would  have  a  right  to  interfere 
with  or  complain  of  the  manner  in  which  they  had  performed  it."  So  also  in 
Chicago,  Burlington,  &  Quincy  Railw.  p.  Wilson,  17  111.  123,  it  was  held,  that 
upon  application  to  a  judge,  to  appoint  commissioners  to  condemn  land  for  the 
use  of  a  railway,  he  is  compellable  to  act,  if  a  case  is  made  under  the  statute. 
His  duty  is  ministerial,  and  not  judicial,  and  a  mandamus  was  accordingly- 
awarded. 

"  The  King  p.  The  Justices  of  West  Riding  of  Yorkshire,  1  Ad.  &  Ell.  563. 
"  The  King  v.  The  Justices  of  the  City  of  York,  1  Ad.  &  Ell.  828 ;  Reg.  p. 
Sheriff  of  Warwickshire,  2  Railw.  C.  661. 

•278 


644  MANDAMUS.  CH.  XXTH. 

conferences  and  briefs,  but  not  the  expenses  of  surveyors,  as 
such. 

*8.  And  where  the  commissioners  refused  to  assess  the  value 
of  land  taken  for  a  railway,  on  the  ground  that  the  prosecutor 
had  no  title  to  the  same,  it  was  held  that  he  is  entitled  to  have 
their  judgment  revised  by  a  jury,  and  a  mandamus  will  lie,  on  his 
behalf,  to  compel  the  commissioners  to  grant  a  warrant  for  a  jury.^ 
And  a  mandamus  will  issue,  at  the  suit  of  supervisors  of  a  town, 
to  compel  a  railway  to  build  a  highway ,^^  or  bridge,^"  for  public  use. 

9.  No  better  general  rule  can  be  laid  down  upon  this  subject, 
than  that  where  the  charter  of  a  corporation,  or  the  general  stat- 
ute in  force,  and  applicable  to  the  subject,  imposes  a  specific  duty, 
either  in  terms  or  by  fair  and  reasonable  construction  and  implica- 
tion, and  there  is  no  other  specific  or  adequate  remedy,  the  writ  of 
mandamus  will  be  awarded.  But  if  the  charter,  or  the  general 
law  of  the  state,  afibrds  any  other  specific  and  adequate  remedy,  it 
must  be  pursued. ^^ 

10.  So,  too,  it  must  be  a  complete  and  perfect  legal  right,  or  the 
court  will  not  award  the  writ.^^     And  the  writ  of  mandamus  is 

"  Carpenter  v.  Bristol,  21  Pick.  258.  See  Smith  v.  Boston,  1  Gray,  72 ;  s.  p. 
Fotherby  r.  Met.  Railw.,  Law  Rep.  2  C.  P.  188. 

"  Whitmarsh  Township  r.  Phil.,  Ger.,  &  N.  Railw.  Co.,  8  Watts  &  Serg.  365. 

"  Cambridge  &  Somerville  v.  Charlestown  Branch  Railw.,  7  Met.  70. 

'^  Rex  V.  Nottingham  Old  Waterworks,  6  Ad.  &  El.  355 ;  Dundalk  Western 
Railw.  V.  Tapster,  1  Q.  B.  667 ;  Corregal  v.  London  &  Blackwall  Railw.,  3 
Railw.  C.  411 ;  The  People  v.  The  Corporation  of  Xew  York,  3  Johns.  Cas.  79. 
It  seems  to  be  considered,  that  quo  warranto  will  not  lie  to  an  eleemosynarj-  cor- 
poration, and  therefore  mandamus  is  the  necessary  remedy  to  correct  abuses. 
2  Kyd  on  Corporations,  337,  n.  a.  In  King  v.  Dr.  Gower,  3  Salk.  230,  it  was 
held  mandamus  was  not  the  proper  remedy  to  try  the  right.  Rex  r.  Bank  of 
England,  Douglas,  524 ;  Shipley  v.  Mechanics'  Bank,  10  Johns.  484 ;  The  State 
r.  Holiday,  3  Halst.  205 :  Asylum  v.  Phenix  Bank,  4  Conn.  172.  Unless  the 
rights  of  the  stockholders  in  this  respect  are  restricted  by  the  charter  of  the  cor- 
poration, or  by  its  rules  and  by-laws  passed  in  conformity  thereto,  stockholders 
have  a  right  of  access  at  reasonable  hours  to  the  proper  sources  of  information, 
to  know  how  the  affairs  of  the  corporation  are  conducted ;  and  if  such  access  is 
refused  to  them,  mandamus  is  the  appropriate  remedy  to  enforce  this  right. 
Cockbum  v.  Union  Bank,  13  La.  Ann.  289,  See  also  People  v.  Haws,  34  Barb. 
69 ;  Lamb  r.  Lynd,  44  Penn.  St.  336.  But  see  Briggs,  ex  parte,  1  Ellis  &  Ellis, 
881 ;  s.  c.  28  L.  J.,  Q.  B.  272,  where  the  assertion  of  the  right  to  inspect  ac- 
counts is  somewhat  modified. 

"  Rex  V.  Afchbishop  of  Canterbury,  8  East,  213 ;  People  c.  Collins,  19  Wend. 
66 ;  1  Wend.  318  ;  Napier,  ex  parte,  18  Q.  B.  692 ;  s.  c.  12  Eng.  L.  &  Eq.  461. 
•  279 


§  155.  IN  WHAT  CASES  THIS   IS   THE  PROPER  REMEDY.  645 

never  awarded  to  compel  the  officers,  or  visitors  of  a  corporation, 
*  who  have  discretionary  powers,  to  exercise  such  powers  according 
to  tlie  requisitions  of  the  writ,  but  to  compel  them  to  proceed  and 
exercise  them  according  to  their  own  judgment,  in  cases  where 
they  refuse  to  do  so.^  And  it  may  be  laid  down  as  a  general  rule, 
that  where  any  officers,  or  boards,  have  a  legitimate  discretion, 
and  are  acting  within  their  appropriate  jurisdiction,  they  cannot 
be  controlled  in  their  action  by  mandamus,  issuing  from  a  su- 
perior court.^^  If  the  visitor  or  trustee  be  himself  the  party  in- 
terested in  the  exercise  of  the  function,  it  is  said  to  form  an 
exception.^ 

*  Rex  r.  Bishop  of  Ely,  1  Wm.  Black.  81 ;  Reg.  r.  Dean  and  Chapter  of 
Chester,  15  Q.  B.  513;  Appleford's  case,  1  Mod.  82.  Lord  Hale's  opinion 
cited  with  approbation  by  Lord  Campbell,  Ch.  J.,  15  Q.  B.  520;  Rex  ».  Bishop 
of  Ely,  2  T.  R.  290;  Murdock's  Appeal,  7  Pick.  322;  Parker,  Ch.  J.,  Attala 
County  r.  Grant,  9  Sm.  &  Mar.  77 ;  Towle  v.  The  State,  3  Florida,  202 ;  2  Q. 
B.  433;  Ex  parte  Benson,  7  Cow.  363,  and  cases  cited,  3  Binney,  273;  5  id. 
87  ;  6  id.  456 ;  5  id.  536  ;  2  Penn.  517  ;  5  Wend.  114 ;  10  Pick.  244 ;  13  Pick. 
225;  24  id.  343;  People  c.  Columbia  C.  P..  1  Wend.  297. 

But  the  officers  of  a  municipal  corporation  will  be  compelled  to  hold  a  court 
for  the  revision  of  the  list  of  burgesses,  notwithstanding  the  time  for  holding  the 
same,  in  compliance  with  the  terms  of  the  statute,  had  elapsed,  and  notwith- 
standing the  mayor,  at  the  time  of  granting  the  mandamus,  was  not  the  same 
person  who  acted  at  the  court.  Regina  ».  Mayor  and  Assessors  of  Rochester, 
7  El.  &  Bl.  910 ;  8.  c.  30  Law  Times,  73. 

But  it  was  held,  in  Heffner  v.  Commonwealth,  28  Penn.  St.  108,  that  the 
plaintiff  in  the  proceeding  must  show  a  specific  legal  right,  which  had  been 
infringed ;  and  that  the  damage,  which  the  petitioner  suffered,  in  common  with 
other  citizens,  by  the  neglect  of  a  municipal  corporation  to  lay  out  an  alley, 
although,  by  reason  of  his  land  lying  adjacent,  he  was  specially  exposed  to  suffer 
loss  by  the  neglect,  would  not  entitle  him  to  demand  the  writ :  that  the  injury 
sustained  by  the  petitioner  must  not  only  be  different  in  amount  or  degree,  but 
must  be  different  in  kind  from  that  which  falls  upon  the  public  in  general,  by  the 
grievance  complained  of,  to  entitle  him  to  the  writ.  The  suit  should  be  prose- 
cuted by  some  public  officer,  for  the  redress  of  an  omission  of  duty  affecting 
only  the  public  interest  and  that  of  individuals  incidentally. 

So,  also,  where  the  party  is  entitled  to  costs  in  a  proceeding  before  commis- 
sioners to  estimate  land  damages  against  a  railway,  unless  the  duty  to  award  such 
costs  is  one  which  is  plain  and  obvious,  it  will  not  be  enforced  by  writ  of  man- 
damus. Morse,  Petitioner,  18  Pick.  448.  And  the  court  will  not  grant  a  man- 
damus requiring  parish  officers  to  receive  a  pauper  in  obedience  to  an  order  of  re- 
moval, the  proper  course  being  by  indictment.  Downton,  ex  parte,  2  El.  &  Bl.  856. 

"  Waterbury  r.  Hart.,  Prov.,  &  F.  Railw.  Co.,  27  Conn.  146. 

*•  Reg.  r.  Dean  and  Chapter  of  Rochester,  17  Q.  B.  1 ;  s.  c.  6  Eng.  L.  &  Eq. 
269. 

•280 


646 


MANDAMUS. 


CH.  xxni. 


*  11.  But  in  a  recent  case,^  it  is  said  to  be  an  inflexible  rule  of 
law,  that  where  a  person  has  been  de  facto  elected  to  a  corporate 
office,  and  has  accepted  and  acted  in  the  office,  the  validity  of 
the  election  and  the  title  to  the  office  can  only  be  tried  by  proceed- 
ing on  a  quo  warranto  information.  A  mandamus  will  not  lie, 
unless  the  election  can  be  shown  to  be  merely  colorable. 

But  where  the  right  is  clear,  or  where  the  old  board  refuse  to 
surrender  to  the  newly  elected  one,  without  any  color  of  excuse, 
the  new  board  may  be  put  in  possession  of  the  insignia  or  func- 
tions of  office  by  writ  of  mandamus,  or,  as  held  in  some  of  the 
states,  by  bill  in  equity.^ 

12.  And  this  is  the  proper  remedy  to  compel  a  corporation  to 
allow  the  transfer  of  stock  upon  their  books  ,^  or  the  company 
may  be  compelled  to  pay  damages  for  such  refusal  by  an  action  at 
law.26 

SECTION  VI. 
Proper  Excuses,  or  Returns  to  the  Writ. 


1.  Company  may  return  that  powers  had  ex- 

pired at  date  of  writ. 

2.  May  show  want  of  funds  to  perform  duty. 

3.  But  cannot  show  that  road  is  not  neces- 

sary, or  would  not  be  remunerative. 

4.  May  quash  part  of  return,  and  require 

answer  to  remainder. 
6.    Counsel  for  writ  entitled  to  begin  and  dose. 


6.  Cannot  impeach  the  statute  in  reply  to  the 

writ. 

7.  Peremptory  writ  cannot  issue  till  whole 

case  tried. 

8.  Will  not  quash  return  summarily. 

9.  No  excuse  allowed  for  not  complying  with 

peremptory  writ. 


§  156.  1.  It  seems  to  be  an  unquestionable  answer  to  the  writ 
of  mandamus  to  compel  the  company  to  complete  their  road, 
that  the  time  for  taking  lands  under  the  act  had  expired  at  the 
time  of  issuing  the  alternative  writ,  so  that  it  had  become  *  impos- 
sible to  build  the  road,  as  required  in  the  writ.^    But  where,  at  the 

"  Reg.  V.  Mayor,  &c.  of  Chester,  5  El.  &  Bl.  531 ;  s.  c.  34  Eng.  L.  &  Eq.  69. 

"  Dart  V.  Houston,  22  Ga.  506. 

**  Helm  V.  Swiggett,  12  Ind.  194.  But  where  a  shareholder  executed  a 
transfer  of  his  shares,  which  he  took  together  with  the  certificate  of  his  shares  to 
the  company's  office  for  registration,  and  left  the  transfer,  but  refused  to  leave 
the  certificate  for  the  inspection  of  the  directors,  it  was  held  that  the  court 
would  not  compel  the  company  to  register  the  transfer.  East  Wheal  Martha 
Mining  Company  in  re,  33  Beav.  119. 

'  Reg.  V.  London  &  N.  W.  Railw.,  16  Q.  B.  864 ;  s.  c.  6  Eng.  L.  &  Eq.  220, 
*  281,  282 


§  156.  PROPER   EXCUSES,   OR   RETURNS  TO   THE  WRIT.  647 

time  of  the  service  of  the  alternative  mandamus,  the  company  had 
time  to  institute  compulsory  proceedings  for  taking  lands,  it  was 
held,  that  if,  instead  of  doing  so,  they  attempted  to  defend  the  writ, 
and  failed,  it  was  at  their  peril,  and  the  court  would  not  excuse 
them,  upon  the  ground  that  in  the  mean  time  their  compulsory 
powers  had  expired.* 

2.  And  where  it  was  attempted  to  defend  against  the  writ,  on 
the  ground  that  it  was  not  shown  that  the  company  had  funds,  the 
court  said,  in  the  last  case  referred  to  :  "  We  shall  presume  that 
the  company  have  funds."  But  it  would  seem  that  the  want  of 
funds,  and  of  the  ability  to  obtain  them,  if  shown  on  the  return  to 
the  alternative  mandamus,  might  be  an  excuse.*    *  And  the  com- 

denying  the  authority  of  Reg.  r.  Birmingham  &  Gloucester  Railw.,  2  Q.  B.  47, 
upon  this  point,  as  justifying  the  writ.  And  in  the  former  case  it  was  held,  the 
prosecutors  were  guilty  of  laches  in  not  sooner  applying  for  the  writ.  But  a 
plea  that  the  cause  of  action  did  not  accrue  within  six  years,  is  a  bad  plea  to  a 
declaration  for  a  mandamus,  as  the)  statute  of  limitations  does  not  bar  an  action 
for  such  a  writ.  Ward  r.  Lowndes,  6  Jur.  N.  S.  247 ;  s.  c.  1  Ellis  &  Ellis,  940, 
956 ;  2  id.  419 ;  29  L.  J.  Q.  B.  40. 

•  Reg.  P.  York,  Newcastle,  &  Berwick  Railw.,  16  Q.  B.  886;  s.  c.  6  Eng. 
L.  &  Eq.  259;  Reg.  v.  Lancashire  &  Yorkshire  Railw.,  16  Q.  B.  906;  8.  c. 
6  Eng  Law  &  Eq.  265;  Reg.  r.  G.  W.  Railw.,  1  El.  &  Bl.  263,  744;  8.  c.  18 
Eng.  L.  &  Eq.  364.  In  this  case  it  was  held,  that  the  return  must  show  that 
the  company's  compulsory  powers  for  taking  land  had  expired,  and  that  they 
could  not  obtain  the  necessary  land  without  exercising  those  powers.  •  Where, 
on  motion  for  mandamus  to  compel  the  company  to  build  a  bridge,  it  was  stated 
on  behalf  of  the  company  tliat  they  could  not  build  it  without  purchasing 
additional  land,  and  that  their  powers  for  that  purpose  had  expired,  and  the  pros- 
ecutor stated  that  they  could  build  it  without  taking  additional  land,  it  was  held 
that  a  writ  of  mandamus  should  issue  to  the  company,  and  that  they  might 
return  their  inability  from  want  of  power  to  purchase  land.  Regina  r.  Dundalk 
&  Enniskillen  Railw.,  5  L.  T.  N.  S.  25.  Where  mandamus  was  issued  to  a  rail- 
way, reciting  that  premises  in  the  occupation  of  B.  had  been  injuriously  affected 
by  the  works  of  the  company,  and  that  the  company  having  declined  to  join  in 
the  appointment  of  an  arbitrator  to  estimate  the  damage  to  B.,  he  had  appointed 
an  arbitrator,  who  had  duly  made  his  award,  and  commanding  the  company  to 
take  up  his  award,  and  the  company  returned  that  B.  also  occupied  other  lands 
that  were  taken  by  the  company,  and  that,  before  the  execution  of  their  works, 
it  was  agreed  between  him  and  the  company  that  the  company  should  pay  to  him 
a  certain  sum  in  satisfaction  of  the  lands  so  taken,  and  the  premises  so  inju- 
riously affected,  this  was  held  a  good  return.  Regina  ».  West  Midland  Railw., 
11  W.  R.  857,  in  the  Queen's  Bench. 

'  Lord  CampbeU,  Ch.  J.,  in  Reg.  v.  London  &  N.  W.  Railw.,  16  Q.  B.  864; 
8.  c.  6  Eng.  L.  &  Eq.  220;  Reg.  v.  Ambergate,  &c.  Railw.,  1  El.  &  Bl.  372; 
8.  C.  18  Eng.  L.  &  Eq.  222.     In  Reg.  v.  Eastern  Counties  Railw.,  10  Ad.  & 

•283 


648  MANDAMD8.  CH.  XXIIL 

pany  are  not  estopped  from  making  this  plea  by  reason  of  having, 
in  some  instances,  exercised  their  compulsory  powers  of*  taking 
land.* 

3.  But  it  is  no  sufficient  excuse  that  the  road  has  become 
unnecessary,  or  that  it  would  nojb  prove  remunerative,  or  that,  in 
all  reasonable  probability,  the  funds  which  will  come  to  the  hands 
of  the  company  will  prove  inadequate  to  the  completion  of  the 
work.^ 

4.  By  the  English  statute  the  court  may  quash  part  of  a  return  to 
the  writ  which  is  bad  in  law,  and  put  the  prosecutor  to  plead  to  or 
traverse  the  remainder.  But  if  the  grounds  of  defence  to  the  writ 
be  repugnant,  the  court  may,  upon  that  ground,  quash  the  whole.® 

5.  The  counsel  for  the  crown  are  allowed  to  begin,  although  the 
return  may  be  in  the  nature  of  a  demurrer  to  the  writ.'^  The 
validity  of  the  writ  may  be  impeached  on  the  return.^ 

6.  In  a  case  where  the  approaches  to  a  bridge  across  a  railway 
were  not  of  the  width  required  by  the  special  act,  a  return  to  the 
writ  of  mandamus,  that  they  were  as  convenient  to  the  public  as 
the  original  road,  or  as  they  could  be  made,  in  execution  of  the 
powers  of  the  act,  and  that  to  widen  them  to  the  dimensions  de- 
fined in  the  act  would  require  more  land,  and  that  their  powers  for 
taking  land  compulsorily  had  expired  before  they  were  called  upon 
to  widen  these  approaches,  is  bad.^ 

7.  The  peremptory  writ  will  not  be  issued  until  all  the  *  matters 
contained  in  the  alternative  writ  are  finally  determined  in  favor  of 
the  application.^*^ 

Ellis,  .531,  it  was  considered  no  objection  to  granting  the  writ  that  the  company- 
had  not  the  requisite  funds,  and  could  not  raise  them,  without  a  new  act. 

*  Reg.  V.  Ambergate,  &c.  Railw.,  1  El.  &  Bl.  372 ;  s.  c.  18  Eng.  L.  &  Eq.  222. 

*  Reg.  V.  York  &  N.  M.  Railw.,  16  Eng.  Law  &  Eq.  299,  not  reversed  upon 
these  points.  Reg.  v.  L.  &  Y.  Railw.,  7  Railw.  Cas.  266;  s.  c,  16  Eng.  L.  & 
Eq.  327. 

'  9  Anne,  c.  20 ;  Reg.  v.  Mayor  of  Cambridge,  2  T.  R.  456 ;  4  Burrow, 
2008 ;  Rex  v.  Mayor  of  York,  5  T.  R.  66. 

''  Reg.  V.  St.  Pancras,  6  Ad.  &  Ellis,  314 ;  State».  Directors  of  Bank,  28  Vt.  594. 

*  Clarke  v.  Leicestershire  &  Northamptonshire  Canal  Co.,  6  Q.  B.  898 ;  s.  c. 
3  Railw.  C.  730. 

»  Reg.  V.  Birmingham  &  Gloucester  Railw.,  2  Q.  B.  47 ;  3  id.  223 ;  2  Railw. 
C.  694 ;  Rex  v.  Ouse  Bank  Commissioners,  3  Ad.  &  Ellis,  644. 

"  Reg.  V.  Baldwin,  8  Ad.  &  Ellis,  947.  This  was  where  the  alternative  writ 
required  two  sums  of  money  to  be  paid,  and  it  had  been  found  that  one  of  the 
sums  was  due,  and  the  inquiry  was  not  finished  in  regard  to  the  other.  The 
•284 


§  157.  WRIT  REQUIRING   TOO   MUCH.  649 

8.  The  court  will  not  quash  a  return  summarily,  or  order  it  taken 
off  the*  file,  unless  it  is  frivolous,  so  as  to  be  an  obvious  insult,  and 
contempt  of  court.*^ 

9.  No  excuse  for  non-compliance  with  a  peremptory  writ  of 
mandamus  is  admissible.^*  It  is  no  ground  of  objection  to  a  man- 
damus, that  a  requisition  is  made  on  parties  in  the  alternative,  to 
do  one  of  three  things,  if  the  duty  enjoined  by  the  act  of  parlia- 
ment forms  one  of  them,  and  there  has  been  a  general  refusal  to 
comply  with  the  requisition.^^  And  the  demand  for  the  rate  in 
this  case  was  held  sufficient,  notwithstanding  the  church-wardens 
required  the  vestry  to  lay  the  rate,  or  do  another  act,  which  last 
was  illegal.^* 

SECTION  VII. 

Where  the  aUemative  Writ  requires  too  much,  it  is  hadi  for  that 
which  it  might  have  maintained. 

§  157.  It  seems  to  be  well  settled  in  the  English  practice,  that 
if  the  writ  issue,  in  the  first  instance,  for  some  things  which  de- 
fendant is  not  bound  to  do,  it  cannot  be  supported,  even  as  to 
those  things  which  he  is  compellable  to  perform.^  But  the  writ 
*  may  be  awarded  to  complete  such  portions  of  their  road  as  the 
company  are  still  compellable  to  build,  although  from  lapse  of 
time  it  has  become  impossible  to  build  the  entire  road.^ 

But  if  the  alternative  writ  commands  more  than  is  necessary  to 

court  refused  to  grant  a  peremptory  writ  for  the  payment  of  the  sum,  about 
which  tlie  controversy  was  ended. 

»  Reg.  V.  Payn,  3  Nev.  &  P.  165 ;  The  King  r.  Round,  6  Nev.  &  M.  427. 
But  the  return  to  a  writ  of  mandamus  must  be  very  minute  in  showing  why  the 
party  did  not  do  what  he  was  commanded  to  do.  Reg.  v.  Port  of  Southampton, 
1  El.  B.  &  S.  5 ;  8.  c.  7  Jur.  N.  S.  990 ;  30  L.  J.  Q.  B.  244. 

"  Reg.  r.  Mayor  of  Poole,  1  Q.  B.  616.  But  after  judgment  for  the  crown, 
on  a  return  to  a  writ  of  mandamus,  the  defendants  having  voluntarily,  and  with 
the  prosecutor^s  assent,  done  the  act  commanded,  the  court  will  quash  a  peremp- 
tory writ  of  mandamus  as  unnecessary,  and  an  abuse  of  the  process  of  the  court. 
Reg.  ».  Saddlers'  Company,  3  El.  &  El.  42 ;  8.  c.  10  Ho.  Lds.  Cas.  404 ;  33  L.  J. 
Q.  B.  68.  "  Reg  v.  St.  Margarets,  Leicester,  8  Ad.  &  Ellis,  889. 

»  Reg.  V.  Caledonian  Railw.,  16  Q.  B.  19;  8.  c,  8  Eng.  L.  &  Eq.  286;  Reg. 
r.  East  &  West  India  Docks  &  Birm.  June.  Railw.,  2  El.  &  Bl.  466;  8.  c.  22 
Eng.  L.  &  Eq.  113. 

»  Reg.  p.  York  &  North  M.  Railw.,  16  Eng.  L.  &  Eq.  299.  This  case  waa 
reversed  in  Exchequer  Chamber  upon  other  grounds. 

•    .  •285 


650 


MANDAMUS. 


CH.  XXIII. 


be  done  to  comply  with  the  statute,  it  will  be  quashed,  notwith- 
standing the  party  might  have  been  entitled  to  this  remedy  to  a 
certain  extent.^ 


SECTION  VIII. 


Enforcing  Payment  of  Money  awarded  against  Railways. 


1.  The  enforcement  of  payment  of  money 

against  corporations  by  mandamus. 

2.  Where  debt  will  lie,  the  party  not  entitled 

to  mandamus. 

3.  Mandamus  proper  to  compel  payment  of 

compensation  under  statute. 


4.  Mandamus  not  allowed  in  matters  of  equity 
jurisdiction. 

Contracts  of  company  not  under  seal  en- 
forced by  mandamus. 

Where  a  statute  imposes  a  specific  duty, 
an  action  will  lie. 


5. 


§  158.  1.  It  seems  to  have  been  the  more  general  practice  to 
enforce  the  payment  of  money  awarded  against  a  corporation,  in 
pursuance  of  a  statute  duty,  by  mandamus,  where  no  other  spe- 
cific remedy  is  provided.^ 

^  York  &  North  Midland  Railw.  v.  Milner,  3  Railw.  C.  774,  reversing,  in  the 
Exchequer  Chamber,  The  Queen  v.  York  &  N.  M.  Railw.,  3  Railw.  C.  764. 

'  The  King  v.  Nottingham  Old  Waterworks,  6  Ad.  &  Ellis,  355 ;  Rex  ». 
Trustees  of  Swansea  Harbor,  8  Ad.  &  EUis,  439.  In  this  case  one  party  moved 
for  a  certioran  with  a  view  to  quash  the  proceedings,  and  the  other  for  a  manda- 
mus to  carry  them  into  effect.  The  rule  for  the  former  was  discharged,  and  for 
the  latter  made  absolute.  Reg.  v.  Deptford  Improvement  Co.,  8  Ad.  &  Ellis, 
910.  Where  a  city  council  is  authorized  and  required  by  law  to  levy  and  col- 
lect a  tax  upon  the  real  and  personal  property  of  the  city,  sufficient  to  pay  the 
interest  upon  bonds  issued  by  the  city  in  payment  of  a  subscription  to  the  stock 
of  a  railway  company,  and  the  council  refuses  to  do  so,  and  there  is  no  specific 
legal  remedy  provided  for  such  refusal,  mandamus  may  be  issued  to  compel 
them  to  perform  that  duty,  at  the  instance  of  holders  to  whom  the  bonds  have 
passed  from  the  company.  An  express  or  explicit  refusal  in  terms  is  not  neces- 
sary to  put  the  respondents  in  fault ;  it  will  be  sufficient  that  their  conduct  makes 
it  clear  that  they  do  not  intend  to  do  the  act  required.  The  writ,  in  such  case, 
may  be  applied  for  by  any  of  the  bondholders ;  and  it  is  not  necessary  that  all 
the  bondholders  should  be  parties  to  it.  Nor  is  it  necessary  to  make  the  railway 
corporation,  to  which  the  bonds  were  originally  executed,  or  the  tax-payers  of 
the  city,  or  the  commonwealth,  parties  to  the  bills,  in  Kentucky.  And  it  is  no 
objection  to  the  issuing  of  the  writ  that  an  action  has  been  brought  against  the 
city,  upon  some  of  the  coupons,  such  action  having  been  dismissed  before  judg- 
ment, on  the  petition  for  mandamus.     Maddox  v.  Graham,  2  Met.  (Ky.)  66. 

It  is  laid  down  in  the  above  case,  that  a  proceeding  for  a  mandamus  against 
the  city  council  is  virtually  a  proceeding  against  the  corporation,  and  the  judg- 
ment is  obligatory  upon  the  members  of  the  common  council  who  may  be  in 
office  at  the  time  of  its  rendition.  And  a  change  in  the  membership  of  this  coun- 
cil does  not  so  change  the  parties  as  to  abate  the  proceeding.     lb. 


§  158.      ENFORCING   PAYMENT   AWARDED   AGAINST  RAILWAYS.  651 

*  2.  But  it  has  been  held  that  an  action  of  debt  will  lie  upon  the 
Inquest  and  assessment  of  compensation  for  land.*  And  where,  in 
granting  to  a  railway  the  right  to  erect  a  bridge  across  the  river 
Ouse,  it  was  provided  in  the  act  of  parliament,  that,  if  the  erection 
of  such  bridge  should  lessen  the  tolls  of  another  bridge  company 
upon  the  same  river,  after  a  trial  of  three  years,  as  compared  with 
the  three  years  next  preceding  the  erection  of  the  railway  bridge, 
the  railway  company  should  pay  to  the  bridge  company  a  sum 
equal  to  ten  years'  purchase  of  such  annual  decrease  of  tolls  ;  it 
was  held  that  debt  will  lie  for  such  purchase,  and  that  mandamus 
is  no  more  effectual  remedy  and  ought  not  to  be  granted.^  If  the 
party  have  no  right  to  execution,  upon  an  award,  mandamus  will 
be  awarded,  otherwise  not.* 

3.  So  the  court  will  not  enforce  an  ordinary  matter  of  contract 
or  right,  upon  which  action  lies  in  the  common-law  courts,  as  to 
compel  common  carriers  to  perform  their  public  duties,  or  special 
contracts,^  the  statute  not  requiring  them  to  carry  all  goods 
offered.  But  where  compensation  is  claimed  for  damages  done 
under  a  statute,  the  proper  remedy  is  by  mandamus,  *  although  the 
party  may  claim  that  the  company  went  beyond  their  powers,  and 
thus  committed  a  wrong  for  which  the  proper  remedy  is  an  action.^ 

4.  Nor  will  mandamus  lie  where  the  proper  remedy  is  in  equity,^ 

*  Corrigal  v.  The  London  &  Blackwall  Railw.,  6  Man.  &  Gr.  219. 

'  Reg.  r.  The  Hull  &  Selby  Railw.,  6  Q.  B.  70;  Williams  ».  Jones,  13  M. 
&  "W.  628.  Courts  of  equity  will  not  interfere  where  there  is  a  remedy  before 
sheriffs'  jury.  East  and  West  India  D.  &  B.  Railw.  r.  Gattke,  3  Mac.  &  6.  166 ; 
8.  c.  3  Eng.  L.  &  Eq.  59. 

*  Rex  r.  St.  Catherine's  Dock  Co.,  4  Bam.  &  Ad.  360;  Corpe  r.  Glyn,  8  B. 
&  Ad.  801 ;  Reg.  r.  The  Victoria  Park  Co.,  1  Q.  B.  288.  And  in  this  case  Den- 
man,  Ch.  J.,  says,  the  court  should  not  go  beyond  our  extraordinary  interposi- 
tion by  mandamus,  to  rt-quire  a  corporation  to  make  a  call  upon  the  shareholders, 
to  pay  debts,  where  the  legislature  had  intrusted  them  with  that  power,  and  they 
had  no  standing  capitaL 

*  Ex  parte  Bobbins,  7  Dowl.  P.  Cases,  666. 

*  Reg.  r.  North  Mid.  Railw.,  2  Railw.  C.  1 ;  11  Ad.  &  Ellis,  955 ;  Thicknesse 
V.  Lancaster  Canal  Co.,  4  M,  &  W.  472 ;  Fenton  r.  Trent  &  Mersey  Nav.  Co., 
9  M.  &  W.  203 ;  Rex  p.  Hungerford  Market  Co.,  3  Nev.  &  M.  622. 

'  Rex  r.  The  Marquis  of  Stafford,  3  T.  R.  646.  See  Edwards  v.  Lowndes, 
1  Ellis  &  B.  92 ;  20  L.  J.  Q.  B.  404 ;  16  Eng.  L.  &  Eq.  204.  The  relation  of 
trustee  and  cestui  que  trust  gives  no  right  of  action  at  law  for  money  due.  Par- 
doe  r.  Price,  16  M.  &  W.  451.  The  proper  remedy  is  in  equity,  and  mandamus 
will  not  lie.  Reg.  r.  Trustees  of  Balby  &  Worksop  Turnpike,  1  B.  B.  C.  134 ; 
8.  C.  16*Eng.  L.  &  Eq.  276. 

•  286,  287 


652  MANDAMUS.  CH.  XXIII. 

and  the  right  is  one  not  enforceable  at  law,  but  only  in  equity,  as 
in  matters  of  trust  and  confidence.  But  in  a  case  where  the  act 
of  incorporation  allowed  the  company  to  sue  and  to  be  sued  in  the 
name  of  their  clerk,  it  was  held  that  execution  could  not  issue 
against  the  clerk  personally,  and  in  giving  judgment,  Tindal,  Ch. 
J.,  said :  "  There  can  be  no  doubt  but  that  the  funds  of  the  trus- 
tees may  be  made  answerable  for  the  amount  ascertained  in  the 
action,  in  case  of  a  refusal  to  apply  them,  either  by  a  mandamus 
or  a  bill  in  equity."  ^ 

5.  And  where,  after  a  rule  wm,  for  a  mandamus  to  compel  the 
company  to  summon  a  jury  to  assess  compensation  to  land- 
owners, a  contract  was  entered  into  between  the  land-owners 
and  the  agent  of  the  company,  wherein  they  agreed  upon  the 
payment  of  a  stated  sum,  and  also  a  weekly  compensation  ;  upon 
the  payment  of  the  stated  sum,  and  the  execution  of  the  contract, 
the  proceedings  were  discontinued.  The  company  paid  the  weekly 
sum  for  a  time,  and  then  discontinued  the  payment.  The  applica- 
tion for  mandamus  being  renewed,  the  court  held,  that,  as  the 
contract  was  not  under  their  seal,  no  action  will  lie  upon  it, 
against  the  company,^  and  it  should  therefore  be  enforced  by  man- 
damus .^^ 

*  6.  It  seems  to  be  the  general  rule  of  the  English  law,  that 
where  a  statute  imposes  a  specific  obligation  or  duty  upon  a 
corporation,  an  action  will  lie  to  enforce  it,  founded  upon  the 
statute,  either  debt  or  case,  according  to  the  nature  of  the 
claim.^i 

^  Wormwell  v.  Hailstone,  6  Bing.  668. 

8  Reg.  V.  Mayor  of  Stamford,  6  Q.  B.  433. 

>°  Reg.  V.  Bristol  &  Exeter  RaUw.,  4  Q.  B.  162 ;  s.  c.  3  Railw.  C.  777.  This 
seems  to  us  rather  a  refinement.  If  the  contract  was  really  obligatory  upon  the 
company,  it  might  as  well  be  the  foundation  of  an  action,  as  to  be  enforced  by 
mandamus.  In  Tenneyu.  East  Warren  Lumber  Company,  43  N.  H.  343,  it  was 
held,  that  evidence  that  a  deed  purporting  to  be  the  deed  of  a  corporation  was 
executed  by  agents  duly  authorized  by  it,  is  prima  facie  evidence  that  any  seal 
affixed  to  it  has  been  adopted  by  the  corporation  for  that  occasion.  And  the  same 
point  is  maintained  in  Ransom  v.  Stonington  Savings  Bank,  2  Beasley,  212. 

"  Tilson  V.  Warwick  Gas-Light  Co.,  4  B.  &  Cres.  962;  Garden  v.  General 
Cemetery  Co.,  6  Bing.  (N.  C.)  253. 
*288 


§159. 


WRIT   DENIED   IN   MATTEBS   OF  PRIVATE  CONCERN. 


653 


SECTION    IX. 


The  Writ  sometimes  denied  in  Matters  of  Private  Concern. 


Mandamus  denied  to  compel  company  to 
divide  profits. 

Allowed  to  compel  production  and  inspec- 
tion of  corporation  books. 

Will  compel  the  performance  of  statute 
duty,  but  not  to  undo  what  is  done. 

Allowed  to  compel  the  production  of  the 


register  of  shares,  or  the  registnf  of  the 
name  of  the  owner  of  shares,  and  in 
other  oases. 

It  is  the  common  remedy  for  restoring  per- 
sons  to  corporate  offices  of  which  thej/ 
are  unjustly  deprived. 


§  159.  1.  Where  the  charter  and  subsequent  acts  relating  to  the 
Bank  of  England  required  the  corporation  to  divide  their  profits 
semi-annually,  a  mandamus  to  compel  the  production  of  the  books 
of  the  company,  so  as  to  show  an  account  of  their  net  income  and 
profits,  since  the  last  dividend  was  declared,  more  tlian  six  months 
having  elapsed,  was  denied.^  Abbott^  Ch.  J.,  said  it  was  in  effect 
"  an  application,  on  behalf  of  one  of  several  partners,  to  compel 
his  copartners  to  produce  their  accounts  of  profit  and  loss,  and  to 
divide  their  profits,  if  any  there  be."  It  was  also  said,  that  this 
might  very  properly  be  done  in  a  Court  of  Chancery,  but  a  court 
of  law  is  a  very  unfit  tribunal  for  such  a  subject.  "  A  mere 
trading  corporation  differs  materially  from  those  which  are  intrusted 
with  the  government  of  cities  and  towns,  and  therefore  have  im- 
portant public  duties  to  perform."  ^a^Zey,  J.,  said:  "  The  court 
never  grant  this  writ,  except  for  public  purposes,  and  to  compel 
the  performance  of  *  public  duties."  Best^  J.,  said :  "  If  we  were 
to  grant  this  rule  we  should  make  ourselves  auditors  to  all  the 
trading  corporations  in  England." 

2.  But  in  a  later  case  ^  it  was  held,  that  mandamus  may  be 
granted  to  compel  the  production  and  inspection  of  corporation 
books  and  records  at  the  suit  of  a  corporator,  where  a  distinct 
controversy  has  already  arisen,  and  the  relator  is  interested  in  the 
question,  and  the  former  cases  upon  the  subject  are  elaborately 
reviewed,  and  held  to  confirm  this  view.^ 

'  Rex  r.  The  Bank  of  England,  2  B.  &  Aid.  620. 

*  Rex  c.  Merchant  Tailors'  Company,  2  B.  &  Ad.  116. 

'  Rex  r.  Hostmen  of  Newcastle-upon-Tyne,  2  Strange,  1223.  So  to  inspect 
the  court  roll  of  a  manor,  at  the  instance  of  a  tenant  who  has  an  interest  in  a 
pending  question,  and  has  been  refused  permission  to  inspect  the  court  rolls  by 

*289 


654  MANDAMUS.  CH.  XXIII. 

3.  The  court  has  refused  to  grant  a  mandamus  to  a  private 
trading  corporation,  to  permit  a  transfer  of  stock  to  be  made  in 
their  books.*  In  one  case  the  writ  was  applied  for,  to  compel 
a  railway  company  to  take  the  company  seal  off  the  register 
of  shareholders.^  Lord  Campbell^  Ch.  J.  said :  "  If  I  had  the 
smallest  doubt,  I  would  follow  the  example  of  the  high  tribunal 
(Q.  B.  in  Ireland),  which  is  said  to  have  complied  with  a  similar 
application.  But  having  no  doubt,  I  am  bound  to  act  on  my  own 
view.  The  writ  of  mandamus  is  most  beneficial,  but  we  must 
keep  its  operation  within  legal  bounds,  and  not  grant  it  at  the 
fancy  of  all  mankind.  We  grant  it  when  that  has  not  been  done 
which  a  statute  orders  to  be  done,  but  not  for  the  purpose  of  un- 
doing what  has  been  done."  ^  "  It  is  said  the  court  will  compel 
the  corporation  to  affix  its  seal,  when  it  refuses  to  do  *  so,  without 
legal  excuse,  but  will  not  try  the  legality  of  an  act,  professedly 
done  in  pursuance  of  a  statute."  The  difierence  seems  to  be  one 
of  form  rather  than  substance,  and  to  rest  mainly  upon  the 
consideration,  that  after  the  act  is  done,  its  legality  had  better 
be  tested  in  the  ordinary  mode,  by  an  action  at  law  or  in 
equity. 

4.  But  the  writ  has  been  granted  to  compel  the  production  of 
a  register  of  shareholders,  to  enable  a  creditor  to  proceed  against 
them."  So,  too,  to  compel  the  registry  of  the  name  of  the  owner 
of  shares,  properly  transferred,  or  of  the  name  of  the  personal 

the  lord  of  the  manor.  Rex  ».  Shelley,  3  T.  R.  141.  But  not  otherwise.  Rex 
r.  Allgood,  7  T.  R.  746.  But  it  is  not  necessary  a  suit  shall  be  pending,  if  a 
distinct  question  have  arisen.  R.  v.  Tower,  4  M.  &  S.  162.  And  in  an  action 
against  an  incorporated  company,  which  had  ceased  to  carry  on  business,  a 
director  of  the  company  may  be  ordered  by  the  court  or  a  judge  to  give  the 
plaintiff  inspection  of  documents  not  denied  to  be  in  his  possession,  or  under  his 
control.  Lacharme  v.  Quartz  Rock  Mariposa  Gold  Mining  Company,  31  L.  J. 
Exch.  335 ;  s.  c.  1  H.  &  C.  134.  And  the  corporators  may  compel  the  in- 
spection of  the  stock  ledger,  if  that  contain  important  evidence,  although  the 
corporation  do  not  keep  the  books  required  by  law.  People  v.  Pacific  Mail 
Steamship  Co.,  50  Barb.  280. 

*  Rex  V.  The  London  Assurance  Company,  5  B.  &  Aid.  899. 
»  Nash,  ex  paHe,  15  Q.  B.  92. 

•  The  office  of  the  writ  of  mandamus  is  to  stimulate  and  not  to  restrain  the 
exercise  of  official  functions ;  and  after  the  officers  have  performed  the  duties 
imposed  upon  them,  they  are  no  longer  subject  to  it.  School  Directors  of  Bed- 
ford Borough  V.  Anderson,  45  Penn.  St.  388. 

'  Reg.  ».  Worcestershire  &  Stafford  Railw.,  Q.  B.  Weekly  R.  1853-64,  482. 
♦  290 


§  159.         WRIT   DENIED   IN   MATTERS   OF   PRIVATE   CONCERN.  655 

representative,  in  case  of  the  decease  of  the  owner.*  But  in 
some  cases  of  peculiar  necessity  for  specific  aid  by  way  of  man- 
damus, as  the  delivery  of  a  key  to  the  party  entitled  to  hold 
it,  by  the  foundation  of  a  private  charity,*  the  writ  has  been 
awarded. 

5.  And  there  can  be  no  doubt  the  Court  of  Queen's  Bench  has 
almost  immemorially  been  accustomed  to  try  the  validity  of  mu- 
nicipal and  other  public  corporate  elections  by  q\io  warranto, 
which,  in  case  of  illegality  found,  will  displace  the  incumbents, 
but  not  establish  those  rightfully  entitled  to  the  function  j^*^  *  man- 
damus being  requisite  for  that  purpose.  But  whatever  may  be 
the  English  rule  in  regard  to  merely  private  corporations,  it  is 
certainly  settled  in  this  country  that  the  courts  will  try  the  validity 
of  an  election  and  the  question  of  usurpations,  and  the  legality  of 
amotions  in  private  corporations  "  in  this  mode.     But  there  is  one 

*  Ante.  §  42  and  §  44 ;  Reg.  v.  L.  &  C.  Railw.,  13  Q.  B.  998.  No  question 
is  made  here  but  the  court  will  compel  the  company,  by  mandamus,  to  enter  a 
transfer  upon  their  books  in  a  proper  case,  but  the  application  was  denied  on 
other  grounds.  See  Reg.  v.  Midland  Counties  &  Sh.  J.  Railw.,  9  L.  T.  N.  S. 
15  Ir.  Com.  Law,  514,  525 ;  8.  c.  161,  155.  And  see  Helm  v.  Swiggett,  12  Ind. 
194.  But  not  where  inspection  of  the  certificate  of  shares  was  refused  to  the 
directors.     East  Wheal  Martha  Mining  Co.,  in  re,  33  Beav.  119. 

•  Reg.  r.  Abrahams,  4  Q.  B.  157. 

»«  Rex  ».  Williams,  1  Bur.  402 ;  Rex  r.  Hertford,  1  Ld.  Ray.  426 ;  1  Sal. 
874 ;  Rex  v.  Breton,  4  Burrow,  2260 ;  Rex  r.  Cambridge,  4  Bur.  2008 ;  Rex 
r.  Tregony,  8  Mod.  Ill,  127  ;  Rex  v.  Turkey  Co.,  2  Burrow,  999  ;  Anonymous, 
2  Strange,  696. 

In  some  English  cases  the  King's  Bench  seems  to  have  altogether  disregarded 
the  distinction  between  public  and  private  corporations,  in  exercising  control 
over  their  functionaries.  Rex  r.  Bishop  of  Ely,  2  T.  R.  290.  And  in  Rex  v. 
St.  Catherine's  Hall,  4  T.  R.  238,  the  refusal  to  grant  the  writ  seems  to  be 
placed  altogether  upon  other  grounds.  But  it  seems  a  mandamus  will  not  be 
awarded  to  compel  a  voluntary'  society  to  recognize  the  righta  of  the  minority. 
The  King  v.  Gray's  Inn,  Douglass,  353 ;  Rex  r.  Lincoln's  Inn,  4  B.  &  C.  855. 
Where  there  is  already  one  in  the  office  de  facto,  mandamus  will  not  be  awarded, 
quo  warranto  being  the  proper  remedy  to  try  the  title  of  the  officer  in  pos- 
session. Rex  r.  Mayor  of  Colchester,  2  T.  R.  259,  260.  But  in  Rex  v. 
Thatcher,  it  was  awarded  to  the  commissioners  of  land-tax  to  admit  the  person 
clerk  having  the  majority  of  legal  votes.  1  Dow.  &  R.  426 ;  The  People  r.  The 
Corporation  of  New  York,  3  Johns.  Cases,  79.  The  St.  Louis  County  Ct.  ». 
Sparks,  10  Missouri,  117 ;  Bonner  v.  State,  7  Georgia,  473 ;  Clayton  v.  Carey, 
4  Maryland,  26. 

"  Commonwealth  r.  Arrison,  15  S.  &  R.  131 ;  People  v.  Thompson,  21 
Wendell,"  235 ;   s.  c.   23  WendeU,  537 ;  People  v.  Head,  25  111.  325 ;  State 

•291 


656  MANDAMUS.  CH.   XXIII. 

case  where  the  court  refused  to  try  the  title  to  an  annual  office  by 
writ  of  mandamus,  for  the  reason  that  it  would  prove  unavailing.^^ 
But  it  has  been  awarded  in  England  to  restore  a  clerk  to  a 
butchers'  company,  a  clerk  to  a  company  of  masons,  and  sundry 
similar  officers,^^  and  in  this  country,  to  restore  the  *  trustee  of  a 
private  academic  corporation, i*  a  member  of  a  religious  corporation, 
and  many  similar  officers.  ^^ 

V.  Common  Council,  9  Wise.  254;  State  v.  Boston,  Concord,  &  M.  R.,  25 
Vt.  433  ;  In  the  matter  of  the  White  River  Bank,  23  Vt.  478 ;  Commonwealth 
V.  The  Union  Fire  and  Marine  Insurance  Co.,  5  Mass.  231 ;  State  v.  Ashley,  1 
Pike,  570;  St.  Luke's  Church  v.  Slack,  7  Cush.  226.  But  in  Gorman  v.  Board 
of  Police,  85  Barb.  527,  it  is  intimated  that  mandamus  will  not  issue  to  restore 
an  officer  removed  in  an  illegal  manner,  but  for  a  sufficient  cause.  Martin  v. 
Board  of  Police,  id.  550.  See  to  the  same  point  Barrows  v.  Mass.  Medical 
Society,  12  Cush.  402.  And  a  fortiori  mandamus  lies  where  the  office  concerns 
the  public  or  the  administration  of  justice.  Lindsey  v.  Luckett,  20  Texas,  516 ; 
Felts  V.  Memphis,  2  Head,  650. 

^'  Howard  v.  Gage,  6  Mass.  462.  But  this  case  was  decided  upon  the 
ground  that  the  statute  of  Anne  not  being  in  force  in  that  state,  the  truth  of  the 
return  to  the  alternative  writ  could  not  be  tried  till  the  term  would  expire.  But 
the  decision  is  scarcely  maintainable  even  upon  that  ground.  But  it  was  held  a 
good  defence  to  a  writ  of  mandamus  to  compel  a  township  treasurer  to  pay  an 
order  for  a  teacher's  salary,  that  his  term  of  office  had  expired,  and  all  the  funds 
in  his  hands  had  in  good  faith  been  paid  over  to  his  successor.  State  e.  Lynch, 
8  Ohio,  N.  S.  347. 

"  Angell  &  Ames  on  Corporations,  §  704.  And  where,  by  the  custom  of  a 
parish,  one  churchwarden  was  appointed  annually  by  the  parishioners,  and  one 
annually  by  the  rector,  and  the  latter  appointed  a  person  who  was  not  an  in- 
habitant of  or  an  occupier  of  property  in  the  parish,  it  was  held  that  a  manda- 
mus to  the  rector  to  appoint  a  churchwarden  was  the  proper  process  by  which  to 
question  the  validity  of  the  appointment.  Barlow  in  re,  30  L.  J.  Q.  B.  271 ; 
8.  c.  5  L.  T.  N.  S.  289.  And  see  Reg.'  v.  Hearts  of  Oak  Benefit  Society,  13  W. 
R.  724. 

"  Fuller  V.  The  Trustees  of  the  Academic  School  in  Plainfield,  6  Conn.  532. 
The  opinion  of  Daggett,  J.,  here  discusses  the  power  of  amotion  of  trustees  and 
officers  by  eleemosynary  corporations  somewhat  at  length,  and  comments  very 
judiciously  upon  the  cases  upon  the  subject. 

'*  Green  v.  The  African  Methodist  Ep.  Society,  1  Serg.  &  R.  254 ;  Common- 
wealth V.  St.  Patrick  Benevolent  Society,  2  Binney,  441,  448;  Commonwealth 
V.  The  Philanthropic  Society,  5  Binney,  486 ;  Commonwealth  v.  Penn.  Ben. 
Institution,  2  Serg.  «&;  R.  141 ;  Franklin  Ben.  Association  v.  Commonwealth,  10 
Penn.  St.  357 ;  Commonwealth  v.  The  German  Society,  15  Penn.  St.  251.  But 
if  the  society  have  the  absolute  power  of  expulsion,  it  would  seem  their  judgment 
in  the  matter  is  not  revisable.     lb. 

But  it  was  said,  a  private  person  who  makes  a  highway  upon  his  own  land, 
and  dedicates  it  to  public  use,  had  no  such  interest  in  the  highway  as  to  enable 
♦292 


§  160.      REMEDY   LOST.  —  PROCEEDING   MUST  BE  BONA   FIDE.  657 


SECTION    X. 

This  Remedy  lost  by  Acquiescence.  —  Proceeding  must  be  Bona 

Fide. 


1.  Remedy  must  be  sought  at  earliest  conven- 

ient time. 

2.  Courts  will  not  hear  such  case,  merdtf  to 

settle  the  qmestiom. 


In  New  York  may  be  brought  any  time 
within  statute  of  limitations. 


§  160.  1.  The  right  to  interfere  in  the  proceedings  of  a  corpora- 
tion by  mandamus,  is  one  of  so  summary  a  character,  that  it 
should  be  asserted  at  the  earliest  convenient  time,  or  it  will  not  be 
sustained.*  And  especially  where,  in  the  meaii  time,  the  *  facilities 
for  accomplishing  a  public  work,  or  the  public  demand  for  it,  have 
materially  changed,  the  writ  will  not  be  awarded.^  But  it  is  often 
proper  and  necessary  to  wait  till  public  works  are  completed,  be- 
fore moving  for  the  writ.* 

2.  The  English  courts  decline  to  hear  applications  for  manda- 

him  to  sue  for  penalties  given  against  a  railway  which  had  cut  through  the  high- 
way and  not  restored  it,  and  a  mandamus  to  enforce  the  recovery  of  such  penalty 
was  denied  on  the  ground  that  the  prosecutor  had  no  public  duty  in  regard  to 
the  highway.     Reg.  c.  Wilson,  11  Eng.  L.  &  Eq.  403 ;  8.  c.  1  El.  &  Bl.  597. 

•  Rex  r.  Stainforth  &  Keadby  Canal  Co.,  1  M.  &  S.  32;  Rex  v.  The  Com- 
missioners of  C.  Inclosurc,  1  B.  &  Ad.  378;  Reg.  c.  Leeds  and  Liverpool 
Canal  Co.,  11  Ad.  &  Ell.  316 ;  Lee  v.  Milner,  1  Railw.  C.  634,  Appendix ;  Reg. 
r.  London  &  N.  W.  Railw.,  16  Q.  B.  864 ;  s.  c.  6  Railw.  C.  634,  and  Ri-g.  r.  Lan- 
cashire &  Yorkshire  Railw.,  16  Q.  B.  906;  8.  C.  id.  654.  So,  in  Connecticut, 
where  by  statute  a  school  district  can  change  its  school-house  only  by  a  two-thirds 
TOte,  and  a  district  which  had  an  established  school-house  voted  by  a  less  majority 
to  have  the  school  kept  for  the  season  in  a  room  furnished  for  the  purpose  within 
half  a  mile  from  the  school-house,  more  convenient  for  the  children  generally,  and 
the  district  committee  kept  the  school  there,  a  mandamus,  being  applied  for  by 
some  members  of  the  district,  tax-payers  therein,  and  some  of  whom  had  children 
whom  they  wished  to  send  to  the  school,  to  compel  the  district  committee  to  have 
the  school  kept  in  the  school-house,  it  appearing  tiiat  at  the  time  of  the  application 
the  term  of  the  school  had  half  expired,  and  had  nearly  expired  at  the  time  of  the 
hearing,  this  was  held  not  to  be  such  a  case  as  called  imperatively  for  the  inter- 
position of  the  court  by  mandanms,  it  not  appearing  to  be  a  permanent  attempt 
to  change  the  place  of  the  school.  Colt  v.  Roberts,  28  Conn.  330.  See  State 
r.  Lynch,  8  Ohio  N.  S.  347. 

»  Reg.  c.  Rochdale  &  Halifax  T.  Railw.,  12  Q.  B.  448. 

•  Parkes  ex  parte,  9  Dowl.  P.  C.  614 ;  Ante,  §  88.  Reg.  ».  Bingham,  4  Q. 
B.  877;  3  liailw.  C.  390. 

42  •293 


658 


MANDAMUS. 


CH.  xxni. 


mus,  which  are  not  bona  fide^  but  merely  to  obtain  the  opinion  of 
the  court,*  even  where  the  prosecutor  may  have  bona  fide  purchased 
shares  in  the  corporation,  but  for  the  mere  purpose  of  trying  a 
question  in  which  the  public  have  an  interest.* 

3.  In  New  York  it  was  held,  that  as  there  was  no  special  lim- 
itation upon  this  remedy,  it  might  be  brought  within  the  time 
fixed  for  the  limitation  of  other  similar  or  analogous  remedies.^ 
But  this  rule  seems  liable  to  objection  in  many  cases.  The 
English  rule,  that  the  party  should  suffer  no  unreasonable  delay, 
in  the  opinion  and  discretion  of  the  court,  seems  more  just  and 
equitable,  and  is  countenanced  by  other  American  cases.^  The 
late  decisions  of  the  English  courts  are  very  strict  upon  this 
point.'^ 

♦SECTION  XI. 

Mandamus  allowed  where  Indictment  lies. 


1.  Party    may  have  mandamus  sometimes 

wheie  act  is  indictable. 

2.  Allowed  to  compel  company  not  to  take  up 

their  rails. 


3.    Will  not  lie  where  there  is  other  adequate 
remedy. 


§  161.  1.  It  seems  to  have  been  considered  that  the  fact  that  a 
railway  or  other  corporation  had  exposed  themselves  to  indictment 
by  the  very  act  or  omission  proposed  to  be  remedied  by  mandamus, 
was  no  sufficient  answer  to  the  application.^  But  we  are  not  to 
understand  by  this  that  the  two  remedies  are  regarded  as  in  any 
just  sense  concurrent,  and  at  the  election  of  the  party  injured. 
An  indictment  is  ordinarily  no  adequate  redress  for  private  wrong. 
The  case  of  a  nuisance,  put  by  Lord  Denman,  in  the  last  case,  illus- 
trates the  subject  fairly.  The  indictment  only  redresses  the 
public  wrong  inflicted  by  a  nuisance.  One  who  suffers  special 
damage  is  entitled  to  a  private  action,  and  sometimes  to  specific 
redress,  in  equity  or  by  mandamus. 

*  Reg.  V.  Liverpool,  M.  &  N.  Railw.,  21  L.  J.  Q.  B.  284;  16  Jur.  149;  11 
Eng.  L.  &  Eq.  408 ;  Reg.  v.  Blackwall  Railw.,  9  Dowl.  P.  Cas.  558. 

»  The  People  v.  The  Supervisors  of  West  Chester,  12  Barb.  446. 

•  Mayor,  &c.  of  Savannah  v.  State,  4  Ga.  26. 
'  Reg.  V.  Townsend,  28  Law  Times,  100. 

'  Reg.  ».  Bristol  Dock  Co.,  2  Q.  B.  64:  s.  0.  2  Railw.  C.  699;   Reg.  v. 
Manchester  &  Leeds  Railw.,  3  Q.  B.  628. 
*  294 


§  162.  JUDGMENT   FOR  MANDAMUS  REVISABLE  IN   ERROR.  659 

2.  Hence,  where  a  railway  company,  after  having  completed 
their  road,  under  an  act  of  parliament,  by  which  it  was  provided 
the  public  should  have  the  beneficial  enjoyment  of  the  same,  pro- 
ceeded to  take  up  the  railway,  a  mandamus  was  awarded  to  compel 
them  to  reinstate  it.^ 

•  3.  And  it  may  safely  be  affirmed  that  the  mandamus  will  bo 
denied  where  there  is  other  adequate  remedy .^ 


SECTION  XII. 

Judgment  upon  Petition  for  Mandamus  revisable  in  Error. 

§  162.  In  those  states  where  the  court  having  jurisdiction  to 
award  the  writ  of  mandamus  is  not  the  court  of  last  resort,  the 
judgment  upon  applications  for  such  writs  is  revisable  upon  writ 

»  Rex.  r.  The  Severn  &  Wye  Railw.,  2  B.  &  Aid.  64G.  Abbott,  Ch.  J.,  said, 
in  giving  judgment  :  "If  an  indictment  had  been  a  remedy  equally  convenient, 
beneficial,  and  effectual  as  a  mandamus,  I  should  have  been  of  opinion  that  we  ought 
not  to  grant  the  mandamus";  but  it  is  not,  "for  a  corporation  cannot  be  com- 
pelled, by  indictment,  to  reinstate  the  road." 

"  The  court  may,  indeed,  in  case  of  conviction,  impose  a  fine,  and  that  fine  may 
be  levied  by  distress ;  but  the  corporation  may  submit  to  the  payment  of  the  fine 
and  refuse  to  reinstate  the  road."  Grant  on  Corp.  270.  And  in  State  v.  Hart- 
ford &  New  H.  Railw.  Co.,  29  Conn.  538,  this  writ  was  awarded  to  com- 
pel the  defendants  to  continue  to  run  trains  to  connect  with  the  steamboats  on 
the  Sound,  after  the  company  had  formed  a  connection  with  the  New  Haven  & 
New  York  Railw.,  and  had  discontinued  running  trains  across  that  portion  of 
their  road  which  connected  with  the  steamboats.  And  it  was  here  considered 
that  a  contract  with  tlie  connecting  railway  to  discontinue  connection  with  the 
steamboats  for  some  equivalent  benefit  to  both  companies  was  void,  as  against 
good  policy,  and  that  it  was  a  proper  case  for  the  public  attorney  to  interfere  by 
way  of  petition  for  mandamus. 

»  Reg.  c.  Gamble  &  Bird,  11  Ad.  &  Ell.  69;  Reg.  r.  Victoria  Park  Co., 
1  Q.  B.  288 ;  Draper  r.  Noteware,  7  Cal.  276 ;  Williams  r.  Judge  of  County 
Court,  27  Miss.  225;  Trustees  ».  State,  11  Ind.  205;  Bush  r.  Beaven,  1  H.  & 
C.  500;  8.0.  32  L.  J.  Exch.  54.  But  in  People  c.  Ililliard,  29  111.  413,  the 
court  hold,  that  it  is  not  indispensable  that  the  petition  should  state  that  the 
relator  is  without  any  other  sufficient  remedy.  If  such  appear  to  the  court  to  be 
the  fact,  the  alternative  writ  will  not  be  quashed.  Id.  But  see  School  Board 
r.  People.  20  111.  525,  contra.  People  v.  Wood,  35  Barb.  653 ;  Goodwin  r. 
Glazer,  10  Cal.  333.  But  the  existence  of  an  equitable  remedy  is  no  ground  for 
refusing  mandamus.  Commonwealth  c.  Commissioners  of  Alleghany,  32  Peon. 
St.  218. 

•295 


660  MANDAMUS.  CH.  XXIII. 

of  error.^  But  it  is  said  not  to  be  the  province  of  a  court  of  error 
to  issue  the  writ  of  mandamus,  unless  the  power  is  conferred  by 
statute  .2 

*  Reg.  V.  The  Manchester  &  Leeds  Railw.,  9  Q.  B.  528,  reversing  the  judg- 
ment of  K.  B.  in  s.  c.  1  Railw.  C.  523,  this  last  hearing  being  in  the  Exchequer 
Chamber.  6  &  7  Vict,  ch,  67,  §  2,  gives  the  right  to  a  writ  of  error.  But  upon 
general  principles,  it  is  as  much  revisable  as  judgment  upon  habeas  corpus. 
Holmes  ex  parte,  14  Pet.  U.  S.  540.  Cowell  v.  Buckelew,  14  Cal.  640.  See 
also  Columbia  Ins.  Co.  v.  Wheelright,  7  Wheat.  534.  The  matter  of  grant- 
ing the  writ  of  mandamus,  being  discretionary  in  the  court,  should  not  preclude 
a  revision  of  the  questions  decided  by  the  court  below  as  matter  of  law.  When 
the  writ  is  denied  as  matter  of  discretion,  that  judgment  is  of  course  not  revis- 
able in  a  court  of  error. 

*  Angell  &  Ames  on  Corp,  §  697. 


§  163.  TO    REMOVE   PBOCEEDINGS  AGAINST   RAILWAYS.  661 


♦CHAPTER    XXIV. 

WRIT   OF   CERTIORARI. 

SECTION    L 

To  remove  Proceedings  against  Raihoays. 


Lies  to  bring  up  unfinished  proctiedings,  or 
thote  not  according  to  the  common  law. 

Thia  writ  is  one  of  very  extensive  ap- 
plication, unless  controlled  by  statute. 


8.   Where  the  case  isJuUy  heard  on  the  appli- 
cation, judgment  may  be  entered. 


§  163.  1.  Where  the  proceedings  against  a  railway  are  in  a  court 
of  record,  and  according  to  the  course  of  the  common  law,  after 
final  judgment  the  writ  of  error  is  the  appropriate  process  for 
their  revision  in  a  superior  court,  and  the  writ  of  certiorari  will  not 
lie.^  But  the  certiorari  is  the  proper  process  to  bring  up  an  un- 
finished proceeding,^  in  an  inferior  court  of  record,  or  a  *  summary 

'  The  King  v.  Inhabitants  of  Pennegoes,  1  B.  &  C,  142 ;  s.  c.  2  Dow  &  R. 
209 ;  Queen  v.  Dixon,  3  Salk.  78. 

Ceiiiorari  is  the  appropriate  remedy  to  revise  erroneous  rulings  of  county 
commissioners,  when  there  is  no  mode  of  revision  appointed  by  law.  Mendon  v. 
County  Commissioners,  2  Allen,  463.  The  same  principle  is  maintained  in 
People  V.  Board  of  Delegates,  14  Cal.  479.  It  does  not  lie  to  review  acts 
simply  ministerial,  but  all  acts  of  a  judicial  nature,  whether  of  a  court  or  a  muni- 
cipal board.  Robinson  r.  Supervisors,  16  Cal.  208.  And  see,  to  the  same 
point,  People  v.  Board  of  Health,  33  Barb.  344 ;  People  r.  Hester,  6  Cal. 
679 ;  Borough  of  Sewickley,  2  Grant's  Cases,  136 ;  Justice,  &c.  v.  Hunt,  29  Ga. 
165.  But  see  Camden  v.  Mulford,  2  Dutch.  49;  State  v.  Jersey  City,  id. 
444.  The  power  of  review  on  a  common-law  certiorari  extends  not  only  to 
questions  affecting  the  jurisdiction  of  the  magistrate  and  the  regularity  of  the 
proceedings  before  him,  but  to  all  other  legal  questions.  Mullins  v.  People,  24 
N.  Y.  399;  Jackson  v.  People,  9  Mich.  111.  But  see  People  r.  Van  Al- 
styne,  32  Barb.  131;  People  v.  Board  of  Delegates,  14  Cal.  179.  Only 
questions  raised  by  the  record  can  be  considered.  People  p.  Wheeler,  21  N.  Y. 
82.  And  see  Frederick  v.  Clarke,  6  Wise.  191 ;  Greenway  ».  Mead,  2  Dutch. 
803;  Low  p.  Galena  &  Chicago  Railw.,  18  111.  3-24;  Mayo  County,  in  re.  It 
Ir.  Com.  Law,  892. 

*  The  writ  of  certiorari  before  judgment  corresponds  to  the  writ  of  error  after 
it.  Comjjionwealth  v.  Simpson,  2  Grant's  Cases,  438.  And  a  proceeding  by 
certiorari  is  like  an  appeal,  and  is  governed  by  the  same  rules,  so  that  the  plain- 

♦  296,  297 


662  WRIT   OP   CERTIORARI.  CH.  XXIV. 

proceeding  in  such  court,  not  according  to  the  course  of  the  com- 
mon law,  after  judgment  thereon,  and  where  there  is  alleged  error 
in  the  proceedings.^ 

2.  Tliis  writ  is  of  universal  application,  unless  taken  away  by 
the  express  words  of  the  statute,  or  where  the  superior  court  is 
not  the  proper  tribunal  to  proceed  with  the  cause.^  And  in  such 
case  the  cause  may  be  brought  up,  and  any  error  corrected,  and 
then  remanded  to  the  inferior  court,  with  a  writ  of  mandamus, 
in  the  nature  of  a  procedendo ;  or  the  mandamus  may  be  awarded, 
in  the  first  instance,  directing  the  inferior  court  to  proceed  and 
finish  the  case  upon  its  merits.* 

tiff  can  dismiss  the  case  in  the  appellate  court,  and  leave  the  whole  matter  as  if 
no  steps  had  been  taken  therein.     Joliet,  &c.  Railw.  v.  Barrows,  2-4  111.  .562. 

'  Where  a  party  has  had  no  notice  of  an  assessment  of  damages  for  land 
taken,  until  after  the  time  limited  for  the  appeal  has  expired,  he  may  have  the 
decision  reviewed  by  certiorari.  Joliet,  &c.  Railw.  v.  Barrows,  24  111.  562. 
And  see  McConnell  v.  Caldwell,  6  Jones  Law,  469 ;  Aycock  v.  Williams,  18 
Texas,  392.  In  the  last  case  it  was  held,  that,  if  a  justice  of  the  peace  grant 
a  new  trial  without  notice  to  the  adverse  party,  who  does  not  appear  at  the 
second  trial,  the  latter  may  either  enjoin  the  collection  of  the  judgment  thus 
rendered,  or  remove  the  cause  to  the  District  Court  by  certiorari.  And  certio- 
ran  will  be  granted  to  bring  up  an  order  of  Quarter  Sessions  which  was  void 
on  the  ground  of  interest  in  the  justices.  See  MoHeran  v.  Melvin,  3  Jones 
Equity,  195;  Darling  v.  Neill,  15  Texas,  104;  Robson  in  re,  6  Mich.  137; 
Clary  v.  Hoagland,  5  Cal.  476.  And  one  against  whom  a  judgment  is  sought 
to  be  enforced,  though  not  a  party  to  the  proceedings,  may  apply  for  a  certiorari. 
Clary  v.  Hoagland,  supra.  And  see  Reg.  v.  Bell,  8  Cox,  C.  C.  28 ;  Reg,  r. 
Hammond,  12  W.  R.  208;  Reg.  v.  London  &  Northwestern  Railw.,  12  W.  R. 
208. 

*  Woodstock  V.  Gallup,  28  Vt.  587 ;  Ottawa  v.  Chicago,  &c.  Railw.,  25 
111.  43.  And  in  New  York  the  only  way  of  reviewing  a  decision  of  a  justice 
of  the  peace  in  summary  proceedings  is  by  a  certiorari.  Romaine  v.  Kinshimer, 
2  Hilton,  519  ;  Reg.  v.  Bristol  &  Exeter  Railw.,  11  Ad.  &  Ellis,  202 ;  Crosse  v. 
Smith,  3  Salk.  79.  It  is  here  said:  "There  is  no  jurisdiction  which  can  with- 
stand a  certiorari.  But  if  the  certiorari  be  taken  away,  by  the  express  words  of 
the  statute,  the  court  will  not  indirectly  accomplish  the  same  thing  by  manda- 
mus. Rex  V.  Justices  of  W.  R.  of  York,  in  the  Matter  of  Railway,  1  Ad.  &  El. 
563 ;  Rex  v.  Fell,  1  B.  «&  A.  380 ;  Rex  v.  Saunders,  5  Dow.  &  R.  611.  Where 
the  certiorari  upon  a  given  subject  is  taken  away  by  act  of  parliament,  it  must 
be  understood  as  extending  only  to  the  terras  of  the  act,  and  for  something  done 
in  pursuance  of  it.  Denman,  Ch.  J.,  Reg.  v.  Sheffield,  A.  &  M.  Railw.,  11  Ad. 
&  El.  194;  s.  c.  1  Railw.  C.  537,  545.  Patteson,  J.,  ♦'  Where  there  is  a  total 
want  of  jurisdiction  and  parties  have  proceeded  in  defiance  of  ceiiiorai'i,  it  is 
not  taken  away."     South  Wales  Railw.  Co.  r.  Richards,  6  Railw.  C.  197. 

See  Jubb  v.  Hull  Dock  Co.,  9  Q.  B.  443.     Denman,  Cb.  J.,  intimates,  that 


§  164.  WHERE  THERE  IS  AN  EXCESS   OP  JURISDICTION.  668 

*  3.  Where  the  case  is  fully  heard  in  regard  to  its  merits, 
upon  the  rule  to  show  cause,  and  there  is  no  dispute  about  the 
facts,  it  is  common  for  the  Court  of  King's  Bench  to  give  judg- 
ment, without  Waiting  for  the  record  to  be  brought  upon  certiorari^ 
similar  to  the  course  we  have  intimated  in  regard  to  applications 
for  mandamus.* 

SECTION   II. 

Where  there  is  an  Excess  of  Jurisdiction. 

§  164.  Where  there  is  an  excess  of  jurisdiction,  the  appro- 
priate remedy  ordinarily  is  by  action  of  trespass.  And  in  such 
cases  the  court  have  more  coinmonly  refused  to  give  redress, 
either  by  certiorari  or  mandamus.^  But  it  is  not  considered  that  a 
statutory  provision,  taking  away  the  writ  of  certiorari,  for  any  thing 
•  done  under  the  act  of  incorporation,  or  the  general  statutes  as 
to  railways,  applies  to  things  done  wholly  without  the  jurisdic- 
tion conferred.^ 

where  the  certiorari  is  taken  away,  in  regard  to  proceedings  under  an  act  of 
parliament,  that  will  not  deprive  the  party  of  that  remedy,  when  the  proceeding 
is  complained  of,  as  not  coming  within  the  act,  although  some  part  of  the  pro- 
ceedings is  confessedly  within  the  act,  citing  Rex  r.  The  Justices  of  Kent, 
10  B.  &  C.  477.  See  Reg.  v.  St.  Olaves,  8  Ellis  &  Bl.  529.  The  right  to  have 
proceedings  reversed  in  the  Supreme  Court  does  not  deprive  the  party  of  the 
right  to  bring  certiorari.  Vanwickle  r.  C.  &  A.  Railw. ;  Bennett  v.  Same, 
2  Green,  145,  162.  A  certiorari  suspends  all  proceedings  in  a  case  till  it  is 
decided.     Taylor  c.Gay,  20  Ga.  77. 

»  In  Re  Edmunson,  17  Q.  B.  67 ;  8.  c.  24  Eng,  L.  &  E.  169.  This  was  a 
case  where  the  statute  required  the  complaint  to  be  made  within  six  months  afler 
the  cause  of  action  arose,  and  for  non-compliance  with  this  requirement  the  court 
held  the  proceedings  liable  to  be  quashed,  and  granted  the  certiorari. 

*  Ante,  §  152.  On  certiorari  the  court  will  not  reverse  a  judgment  for  error 
in  taxing  costs,  but  will  correct  the  error  in  tliis  respect.  Marshall  v.  Burton, 
5  Ilarring.  (Del.)  295. 

>  Reg.  V.  Bristol  &  Exeter  Railw.,  2  Railw.  C.  99  ;  11  Ad.  &  Ellis,  202;  Reg. 
V.  Shedield  &  Ashton-under-Lyne  &  Manchester  Railw.,  11  Ad.  &  El.  194; 
8.  c.  1  Railw.  C.  537,  545.  The  court  will  rarely  grant  this  writ  where  the  party 
has  an  opportunity  to  litigate  the  question  in  action  at  law.  People  t*.  Board  of 
Health,  33  Barb.  344.  And  see  Baltimore,  &c.  Co.  v.  Northern,  &c.  Railw.,  15 
Md.  193;  Peabodyr.  Buentillo,  18  Texas,  313;  Clary  r.  Hoagland,  13  Cal.  173. 

*  Ante,  §  162;  Reg.  r.  Sheffield,  A.  &  M.  Railw.,  11  Ad.  &  El.  194;  8.  c. 
1  Railw.'  C.  545 ;  South  Wales  Railw.  r.  Richards,  6  Railw.  C.  197 ;  Reg.  v. 

*  298,  299. 


664 


WBIT  OP  CERTIORARI. 


CH.  XXIV. 


SECTION    IIL' 


Jurisdiction  and  Mode  of  Procediwe. 


1.  Lies  in  rases  of  irregulcaihf,  unless  taken 

away  by  statute. 

2.  Inquisitions  before  officers,  not  known  in 

the  law. 


8.  Granting  the  wrk  is  matter  of  discretion. 
Defects  not  amendable. 

4.  Not  allowed  for  irregtdarily  in  proceed- 
ings, or  evidence,  or  form  of  judgment. 


§  165.  1.  Although  it  is  held  that  a  statutory  provision,  deny- 
ing the  certiorari^  is  to  be  limited  to  matters  within  the  jurisdiction 
conferred,  and  will  not  restrict  the  power  of  the  court  in  regard 
to  matters  wholly  beyond  the  jurisdiction,  the  same  rule  caimot 
be  extended  to  mere  irregularity  in  the  exercise  of  the  jurisdic- 
tion. For  unless  the  prohibition  of  the  writ  could  apply  to  such 
cases,  it  could  have  no  application,  and  it  is  incumbent  upon  the 
court  to  give  it  a  reasonable  operation  and  construction.^ 

2.  An  inquisition  taken  before  two  under-sheriffs  extraordinary, 
will  be  set  aside  on  that  ground.^  But  an  inquisition  taken  before 
a  clerk  of  the  under-sheriff,  and  an  assessor  appointed  pro  hac  vice 
by  the  sheriff,  although  none  of  the  persons  named  in  the  act,  for 
such  an  office,  will  not  be  quashed  on  certiorari.^ 

*  3.  Tlie  granting  of  the  certiorari  is  matter  of  discretion,*  al- 
though there  are  fatal  defects  on  the  face  of  the  proceedings,  which 
it  is  sought  to  bring  up.^    The  affidavits  should  swear  positively 

Lancashire  &  Preston  Railw.,  6  Q.  B.  759 ;  3  Railw.  C.  725.  Where  a  jury,  sum- 
moned under  8  «&  9  Victoria,  ch.  18,  §  68,  have  taken  into  consideration,  in  awarding 
compensation,  one  claim,  among  others,  as  to  which  they  had  no  jurisdiction,  a  certi- 
orari lies,  although  such  excess  of  jurisdiction  does  not  appear  upon  the  face  of  the 
proceedings,  but  it  may  be  shown  by  affidavit.     Penny  in  re,  7  Ellis  &  Bl.  660. 

*  Reg.  r.  Sheffield,  A.  &  M.  Railw.,  1  Railw.  C.  537 ;  11  Ad.  &  El.  194. 

*  Denny  r.  Trapnell,  2  Wilson,  379.  This  decision  is  upon  the  groimd  that 
the  sheriff  can  only  appoint  one  under-sheriff  extraordinary. 

3  Reg.  c.  Sheffield,  A.  &  M.  Railw.,  11  Ad.  &  EUis,  194.  Thus  showing  the 
disposition  of  the  court  to  sustain  the  proceedings  when  not  in  contravention  of 
the  express  terms  of  the  statute. 

*  State  r.  Hudson,  5  Dutch.  115 ;  Lantis  in  re,  9  Mich.  324 ;  People  v.  Board 
of  Health,  33  Barb.  344;  Johnson  v.  McKissack,  20  Texas,  160;  People  r.  Pea- 
body,  26  Barb.  437 ;  Randle  c.  Williams,  18  Arkansas,  380;  Mayo  County  in  re, 
14  Ir.  Com.  Law  Rep.  392;  Reg.  r.  Reynolds,  13  W.  R.  925;  s.c.  12  L.  T. 
•N.  S.  580. 

*  Reg.  F.  Manchester  &  Leeds  Railw.,  8  Ad.  &  Ellis,  413.  Lord  Denman  says, 
••  I  disclaim  the  principle,  that  we  are  to  issue  a  certiorari  to  bring  up  the  inqui- 

•300 


§  165.  JURISDICTION   AND   MODE   OF   PROCEDURE.  665 

and  specifically  to  the  existence  of  the  defects  relied  upon.^  And 
where  the  party  applying  for  the  writ  fails,  from  incompleteness  in 
the  affidavits,  he  will  not  have  a  certiorari  granted  him,  upon  fresh 
affidavits  supplying  the  defects.^  The  conduct  of  the  prosecutor, 
especially  if  it  had  a  tendency  to  induce  the  defects  complained  of, 
is  important  to  he  considered  in  determining  the  question  of  dis- 
cretion, in  regard  to  issuing  the  writ.^ 

4.  The  court  will  not  ordinarily  quash  proceedings  in  inferior 
tribunals  for  mere  formal  irregularity  in  the  proceedings  or  the 
testimony  received,  especially  when  there  was  no  objection  made 
at  the  time  ;  nor  will  the  form  of  the  judgment  or  decree  be  consid- 
ered any  sufficient  ground  for  allowing  the  writ,  provided  substan- 
tial justice  has  been  done.'^ 

sition,  on  the  ground  that  there  may  probably  be  defects ;  we  must  clearly  see 
that  facts  do  exist  which  will  bring  the  defects  before  us."  And  an  individual 
member  of  a  corporation  cannot  carry  on  suit  by  bringing  certiorari  in  the  name 
of  the  corporation  without  the  consent  of  a  legal  majority  of  the  members  thereof. 
Silk  Maimfacturing  Co.  r.  Campbell,  3  Dutcher,  539. 

•  Reg.  c.  South  Holland  Drainage,  8  Ad.  &  El.  429. 

'  Salem  &  South  Danvers  Railw.  v.  County  Commissioners,  9  Allen,  563. 


666        INFORMATIONS  IN  THE  NATURE   OP  QUO  WARRANTO.    CH.  XXV. 


♦CHAPTER    XXY. 


INFORMATIONS  IN  THE  NATURE   OF  QUO   WARRANTO. 


1.  General  nature  of  the  remedy. 

2.  Its  exercise  conjined  to  the  highest  court  of 

ordinary  civil  jurisdiction. 

3.  In  the  English  practice,  this  remedy  not 

extended  to  private  corporations. 

4.  In  this  country  it  has  been  extended  to 

such  corporations. 

5.  This  remedy  will  only  remove  an  usuiper, 

but  not  restore  the  one  rightfully  entitled. 

6.  Will  not  lie  where  railway  company  open 

part  of  their  road. 

7.  Nor  where  company  issue  stock  below  par, 

or  begin  to  build  road  before  subscription 
full. 

8.  Form  of  the  judgment. 


9.   Rules  in  regard  to  taxing  costs. 

10.  Used  to  test   corporate    existence    and 

power. 

11.  Penalties   provided   by  charter  cannot 

subsequently    be    increased   to    a  for- 
feiture. 

12.  But  a  grant  of  corporate  franchises  may 

be  annulled  when   its   purposes  have 
failed. 

13.  Scire  facias  the  proper  remedy  to  deter- 

mine forfeiture. 

14.  Insufficient  excuses  for  failure  to  repair 

a  turnpike  road. 
16.    This   remedy  does  not    supersede    any 
equitable  redress. 


§  166.  1.  This  is  a  subject  of  very  extensive  application  to  corpo- 
rations, for  the  purpose  of  determining  when  they  have  forfeited  their 
corporate  franchises,  or  usurped  those  not  rightfully  belonging  to 
them,  and  for  numerous  other  purposes.^  It  will  be  found 
treated  very  much  at  length  in  treatises  upon  corporations.^  We 
should  scarcely  feel  justified  in  going  into  the  subject  further 
here  than  it  has  a  special  application  to  railways.  The  form 
of  the  proceedings  in  modern  times  is  by  information  of  the  at- 
torney-general,  or  other  public  prosecuting  officer,  on   behalf  of 

1  See  Palmer  v.  Woodbury,  14  Cal.  43 ;  Gano  v.  State,  10  Ohio  N.  S.  237 ; 
Parker  v.  Smith,  3  Minn.  240 ;  Cleaver  v.  Commonwealth,  34  Penn.  St.  283 ; 
People  V.  Ridgely,  21  111.  65;  Scott  v.  Clark,  1  Clarke,  70;  Mississippi,  «&c. 
Railw.  r.  Cross,  20  Ark.  443,  495. 

*  Angell  &  Ames  on  Corporations,  §§  731-765.  See  State  v.  Mississippi,  &c. 
Railw.,  20  Ark.  443,  495 ;  State  v.  Brown,  5  Rhode  Island,  1 ;  Lindsey  v.  Attor- 
ney-General, 33  Miss.  608.  The  information  may  set  forth  specifically  the  ground 
of  forfeiture  relied  upon,  or  may  call  upon  the  corporation  to  show  by  what  war- 
rant they  still  claim  to  exercise  their  corporate  franchises ;  and  the  information, 
like  any  other  criminal  information,  is  regarded  as  amendable.  Commonwealth 
V,  Commercial  Bank,  28  Penn.  St.  383.  And  the  information  must  acquaint  the 
court  with  the  charter  of  the  company,  so  as  to  show  its  powers  and  duties. 
Danville,  &c.  Co.  v.  State,  16  Ind.  456. 
*301 


§  166.   INFORMATIONS   IN  THE   NATURE  OP  QUO   WARRANTO.  667 

*  the  state,  or  sovereignty,  in  the  nature  of  a  quo  warranto^  upon 
wliich  a  rule  issues  to  the  defendant  to  show  by  what  warrant  ho 
exercises  the  function  or  franchise  called  in  question.^  These  pro- 
ceedings are  how  very  much  controlled  in  England  and  in  the 
American  states  by  statute  defining  the  form  of  process  and  the 
jurisdiction  of  the  courts  in  regard  to  them. 

2.  In  the  absence  of  special  provisions,  the  highest  courts  of 
ordinary  civil  jurisdiction  are  accustomed  to  exercise  the  prerog- 
ative right  of  sovereignty,  to  issue  this  process,  as  well  as  other 
prerogative  writs,  such  as  a  mandamus,  certiorari,  procedendo, 
prohibition,  <fec.  In  some  of  the  states  the  courts  refuse  to  ex- 
ercise any  such  prerogative  rights.*  And  in  others  this  power  is, 
by  statute,  conferred  upon  the  Court  of  Chancery ,  but  in  other 
forms.* 

3.  The  English  courts  do  not  seem  to  have  allowed  the  exercise 
of  this  proceeding  in  the  case  of  mere  private  corporations,  although 
there  are  numerous  cases  in  the  English  books  of  its  exercise  in 
regard  to  municipal  corporations,^  and  others  of  an  important  pub- 
lic character. 

*  State  r.  Brown,  33  Miss.  500. 

*  State  tj.  Ashley,  1  Pike  (Ark.),  279;  State  v.  Turk,  Mart.  &  Yerg.  287; 
Attorney-General  v.  Leaf,  9  Humph.  753.  See  also  State  v.  Merrj*,  3  Missouri, 
278;  State  v.  McBrido,  4  id.  303 ;  State  v.  St.  Louis  P.  M.  &  Life  Ins.  Co.,  8  id. 
330,  where  in  the  latter  state  it  was  held  the  writ  should  issue. 

In  Pennsylvania  the  Supreme  Court  has  authority  to  try  by  mandamus  or  quo 
toarratUo  whether  or  not  a  contract  entered  into  between  two  difierent  corpora- 
tions is  in  excess  of  the  lawful  powers  of  either,  and  if  either  corporation  is  ex- 
ercising rights  or  franchises  to  which  it  is  not  entitled,  then  to  oust  it  therefrom ; 
and  the  proceeding  may  be  either  at  common  law  or  in  equity,  jirovided  the  right 
of  trial  by  jury  is  not  interfered  with.  Commonwealth  v.  Delaware  &  Hudson 
Canal  Co.,  43  Penn.  St.  295. 

*  State  p.  Turk,  Mart.  &  Yerg.  287 ;  State  v.  Merchants'  Ins.  Co.,  8  Humph. 
263 ;  Attorney-General  v.  Leaf,  9  id.  753. 

«  Rex  V.  Williams,  1  Bur.  402 ;  Rex  v.  Breton,  4  Burrow,  2260 ;  Rex  v.  High- 
more,  5  Bam.  &  Aid.  771 ;  Rex  v.  M'Kay,  4  B.  &  C.  351 ;  Smyth  ex  parte,  11 
W.  R.  754 ;  8.  c.  8  L.  T.  N.  S.  458 ;  Reg.  v.  Hampton,  13  L.  T.  N.  S.  431.  The 
same  rule  obtains  in  regard  to  this  proceeding  in  this  respect  in  England  as  in 
regard  to  mandamus. 

Ante,  §  155 ;  Rex  v.  Sir  Wm.  Lowther,  1  Strange,  637 ;  Rex  v.  Mousley,  8 
Ad.  &  Ellis,  N.  S.  957,  decided  in  1846,  where  it  is  held  that  the  mastership  of  a 
hospital  or  a  grammar  school  was  not  of  so  public  a  character  as  to  justify  the 
exercise  of  this  remedy;  nor  the  office  of  a  churchwarden.  Barlow  in  re,  30  L.J. 
Q.  B.  271 ;  8.  c.  5  L.  T.  N.  S.  289. 

•302 


668        INFORMATIONS   IN  THE   NATURE   OF  QUO  WARRANTO.    CH.  XXV. 

*  4.  But  there  is  no  qiiestion  that  in  the  American  states  this 
form  of  proceeding  is  extended  to  aggregate  corporations  in  gen- 
eral, and  more  especially  to  the  case  of  banks  and  railways, 
which  partake  in  some  sense  of  a  public  character.  "^  The  general 
principles  which  we  have  found  applicable  to  the  subject  of  man- 
damus, will,  for  the  most  part,  apply  to  this  proceeding.** 

5.  The  court  cannot  establish  corporate  officers,  who  would 
have  been  elected  had  all  the  legal  votes  offered  been  received  by 
the  inspectors.^  The  only  remedy  is  to  set  aside  the  election. 
And  the  court  will  not  proceed  by  mandamus  to  fill  an  office  until 
the  title  is  first  tried.^^ 

'  Commonwealth  r.  Arrison,  15  Serg.  &  Rawle,  128 ;  The  People  v.  Thomp- 
son, 21  Wend.  235 ;  s.  C.  23  id.  537  ;  Commonwealth  v.  Union  Ins.  Co. ,'5  Mass. 
231;  People  v.  River  Raisin  &  Lake  Erie  Railw.,  12  Mich.  381.  See  ante, 
§  153;  State  v.  B.  Concord  &  M.  Railw.,  25  Vt.  433;  Grand  Gulf  Railw.  and 
Bank  v.  State,  10  Sm.  &  M.  427 ;  State  v.  A.  P.  Hunton  and  others,  28  Vt.  594. 
But  if  an  election  of  managers  of  a  corporation  be  not  disputed  during  their  term 
of  office  by  quo  warranto,  and  they  are  permitted  to  act  throughout  their  term 
as  managers  de  facto,  the  legality  of  the  next  election  cannot  be  questioned  for 
any  vice  or  irregularity  in  the  first.  A  writ  of  quo  warranto  brought  during  the 
term  of  an  office  may  be  tried  after  the  term  has  expired,  but  title  to  a  term  of 
office  already  expired,  at  the  issue  of  the  writ,  cannot  be  determined  in  this  man- 
ner by  proceedings  instituted  against  those  afterwards  succeeding  to  the  office. 
Commonwealth  r.  Smith,  45  Penn.  St.  59.  This  writ  will  be  granted,  although 
the  defendant  has  resigned  the  office,  if  the  object  of  the  relator  is  not  only  to 
cause  the  defendant  to  vacate  the  office,  but  to  establish  another  candidate  in  the 
office,  as  the  relator  is  entitled  in  such  case  to  have  judgment  of  ouster,  or  a  dis- 
claimer upon  the  record.  Queen  v.  Bloyzard,  Law  Rep.  2  Q.  B.  55.  In  Neall 
V.  Hill,  16  Cal.  145,  it  is  said  that  the  removal  of  a  mere  private  or  ministerial 
officer  of  a  corporation  is  a  right  that  belongs  to  the  corporation  alone,  and 
the  courts  have  no  jurisdiction  to  remove  such  officer,  or,  it  seems,  even  to 
enjoin  him  from  acting. 

*  Ante,  chap.  xxin.  And  see  State  v.  Commercial  Bank  of  Manchester,  33 
Miss.  474,  where  the  acts  and  omissions  that  will  allow  a  forfeiture  of  the  charter 
by  quo  warranto,  are  discussed, 

^  In  the  matter  of  the  Long  Island  Railw.,  19  Wendell,  37 ;  2  Am.  Railw.  C. 
453.  In  quo  warranto  against  a  usurper  by  a  claimant,  it  is  competent  for  the 
court  to  oust  the  usurper  without  determining  the  right  of  the  claimant.  Gano 
V.  State,  10  Ohio  N.  S,  237.  See  Doane  v.  Scannell,  7  Cal;  393 ;  People  ».  Same, 
id.  432.  One  who  is  relator  in  a  quo  warranto,  on  the  ground  of  the  use  of 
blank  voting  papers,  but  who  has  previously  used  blank  voting  papers  on  the 
same  and  former  elections,  and  has  been  formerly  elected  in  that  mode,  is  pre- 
cluded from  maintaining  the  writ  upon  that  ground.  Sed  quaere.  Queen  ».  Lof- 
thome,  L.  R.  1  Q.  B.  433. 

'0  Rex  V.  Truro,  3  B.  &  Aid.  590. 
•303 


§  166.    INFORMATIONS  IN  THE   NATURE   OP  QUO  WARRANTO.  669 

6.  And  where  a  railway  company  were  authorized  to  make  a  line, 
with  branches,  and  they  completed  a  portion  of  it,  but  abandoned 
other  parts  of  it,  this  is  not  a  public  mischief,  which  will  entitle 
the  attorney-general  to  file  an  information,  in  the  nature  *of  a 
quo  warranto  against  the  company,  to  prevent  them  from  opening 
the  part  completed,  until  the  whole  is  perfect." 

7.  And  an  information  in  the  nature  of  a  qua  warranto^  under 
the  Massachusetts  statute,  will  not  lie  against  a  railway  company, 
in  behalf  of  a  stockholder,  merely  because  they  issued  stock  below 
the  par  valuc,^^  and  began  to  construct  their  road,  before  the  re- 
quisite amount  of  stock  was  subscribed,  it  not  appearing  that  the 
petitioner's  private  right  was  thereby  put  at  hazard.*^ 

8.  The  form  of  the  judgment  in  proceedings  of  this  character 
will  depend  upon  the  facts  proved,  and  the  object  to  be  attained. 
Where  the  defect  in  defendant's  right  is  merely  formal,  like  the 
omission  to  take  the  requisite  oath,  the  judgment  is  for  a  suspen- 

"  Attorney-General  v,  Birmingham  Junction  Railw.,  3  Mac.  &  Gor.  453 ;  s.  C. 
8  Eng.  L.  &  E<i.  243. 

"  See  Howe  v.  Derrel,  43  Barb.  604 ;  Commonwealth  r.  Farmers'  Bank,  2 
Grant's  Cas.  392. 

"  Hastings  ».  Amherst  &  Belchertown  Railw.,  9  Gush.  696.  In  this  case  the 
charter  provided  that  the  road  extend  "  through  Amherst."  Another  section  of 
the  charter  provided  that  the  road  might  be  divided  into  two  sections,  one 
extending  "  to  the  village  of  Amherst,"  and  the  other  from  "  Amherst  to  Mon- 
tague." It  was  held,  that  taking  land  for  the  road,  upon  a  route  not  terminat- 
ing '*  in  either  village  of  Amherst,"  was  not  the  exercise  of  a  franchise,  not 
granted  by  the  charter. 

Any  material  departure  from  the  points  designated  in  the  charter  for  the  loca- 
tion of  a  railway,  is  a  violation  of  the  charter,  for  which  the  franchise  may  be 
seized  upon  quo  Karratiio,  unless  the  legislature  has  waived  this  right  of  the  state 
by  acts  recognizing  the  legality  of  such  violation  of  the  charter.  Mississippi, 
Ac.  Railw.  r.  Cross,  20  Ark.  44:3. 

Where  an  act  incorporating  a  railway  provided  that  no  subscription  should 
be  received  and  allowed,  unless  there  sliould  be  paid  to  the  commissioners  at  the 
time  of  subscribing  five  dollars  per  share,  and'  this  provision  was  not  complied 
with,  but  the  corporation  organized  itself,  elected  directors,  &c.,  and  began  the 
construction  of  its  road,  by  making  contracts  to  grade  it,  some  of  the  contractors 
not  being  aware  of  this 'failure  to  make  the  stipulated  payment  on  the  shares  at 
subscription,  and  one  of  the  stockholders,  who  was  aware  of  that  failure  when 
he  became  a  stockholder,  and  who  had  voted  at  the  election  of  directors,  and 
otherwise  aided  in  setting  up  the  corporation,  applied  to  the  court  for  leave  to 
file  an  information  in  the  nature  of  a  qtio  warranto  against  the  directors,  to  com- 
pel them  to  show  by  what  authority  they  exercised  their  powers :  it  was  held  that 
this  application  should  be  rejected.     Cole  v.  Dyer,  29  Georgia,  434. 

•304 


670         INFORMATIONS   IN   THE   NATURE   OF   QUO   WARRANTO.     CH.  XXV. 

sion  of  the  exercise  of  the  function  until  qualified  by  compliance 
with  the  requisite  formality. ^^  But  if  there  be  shown,  or  *con- 
fessed,  a  total  defect  of  title  in  defendant,  there  is  a  judgment  of 
ouster  or  forfeiture.^^  And  where  it  is  intended  to  dissolve  the 
corporation,  judgment  to  that  effect  should  be  given  in  form.^^ 

9.  The  relator  is  liable  to  costs  if  he  fail,  and  is  entitled  to  re- 
cover costs  if  he  prevail  ordinarily.  But  where  the  office  is  one 
where  the  party  is  compellable  to  serve,  and  is  accepted  and  held 
in  good  faith,  it  is  not  common  to  allow  costs  against  the  incum- 
bent upon  judgment  of  ouster.^^ 

10.  In  some  of  the  states  a  process  or  proceeding  under  the 
name  of  "  Quo. Warranto"  has  been  applied  to  test  the  question  of 
corporate  existence  and  power,  on  the  ground  of  forfeiture  of  cor- 
porate rights  by  means  of  the  omission  to  perform  acts  required 
by  the  charter,  or  of  an  excess  of  power  having  been  resorted  to, 
in  either  case  in  violation  of  granted  powers  and  duties.^" 

11.  And  where  the  charter  of  a  plank  road  company  provides 
for  the  security  of  travel  and  for  the  enforcement  of  the  duty  of 
the  company  by  suitable  penalties,  and  the  legislature,  after  the 
road  was  built  and  in  use,  imposed  an  entire  forfeiture  of  the 
whole  franchise  of  the  corporation  for  failure  to  keep  any  portion 
of  the  road  in  repair,  it  was  held  to  be  such  a  modification  of  the 
charter  as  did  not  come  within  the  proper  exercise  of  the  police 
power  of  the  state,  and  therefore  void  as  a  violation  of  the  contract 
in  the  grant  of  the  charter.^^ 

12.  But  where  a  turnpike  charter  provides  penalties  upon  the 
company  and  its  agents  for  neglecting  to  keep  the  road  in  good 
and  perfect  repair,  such  provision  cannot  be  held  to  deprive  the 
state  of  its  sovereign  power  to  annul  a  grant  when  its  purposes 
have  failed,  through  either  the  positive  acts  or  neglect  of  the 
grantees ;  and  when  the  fact  of  such  act  or  neglect  is  duly  estab- 
lished, the  special  remedy  provided  by  the  charter  will  be  regarded 
as  merely  cumulative.    It  is  of  the  very  essence  of  a  *corporation, 

"  Rex  V.  Clarke,  2  East,  75.  But  a  judgment  of  ouster  will  conclude  the 
party  in  any  subsequent  proceeding.     lb. 

"  State  V.  Bradford  Village,  32  Vt.  50;  Rex  v.  Tyrrell,  11  Mod.  335. 

'«  Rex  V.  Wallis,  5  T.  R.  375 ;  State  v.  Bradford  Village,  supra. 

"  Danville  &  W.  L.  Plank  Road  Co.  v.  The  State,  16  Ind.  456.  See  also 
The  People  v.  J.  &  M.  Plank  Road  Co.,  9  Mich.  285,  where  the  extent  of  the 
remedy  and  the  form  of  procedure  is  extensively  discussed,  but  by  a  divided 
court.  "  The  People  ».  J.  &  M.  Plank  Road  Co.,  9  Mich.  285. 

•  305,  306. 


§  166.    INFORMATIONS   IN   THE  NATURE  OP  QUO  WARRANTO.  671 

as  a  political  existence  or  abstraction,  that  it  should  always  be 
liable  to  dissolution  by  a  surrender  of  its  corporate  franchises, 
and  by  a  forfeiture  of  them,  either  by  non-user  or  misuser.^ 

13.  In  a  case  where  the  statute  directed  the  public  prosecuting 
officers  to  take  proceedings  to  determine  whether  the  charter  and 
franchises  of  a  turnpike  company  had  become  forfeited  by  non- 
user  or  abuser,  where  no  form  of  remedy  is  prescribed,  it  was 
held  that  scire  facias  was  the  proper  one  to  be  adopted,  and  all 
that  is  required  to  be  set  forth  in  the  writ  is  enough  to  inform  the 
company  of  the  causes  of  complaint  and  the  extent  of  redress 
sought.**  This  procedure  is  very  much  the  same,  in  effect,  as 
that  by  quo  warranto,  already  discussed,  except  that  it  is  in  the 
form  of  a  civil  action.'* 

14.  It  is  no  excuse  for  a  turnpike  company  not  keeping  its  road 
in  repair,  that  the  state  have  chartered  a  railway  along  the  same 
route,  and  thereby  disabled  the  company  from  maintaining  its  road 
in  the  state  of  repair  required  by  the  charter.'^  Nor  is  it  a  bar 
to  the  proceedings  that  the  company  have  applied  all  their  tolls  to 
the  repair  of  the  road.** 

15.  This  remedy  under  tlie  Massachusetts  General  Statutes,*' 
in  order  to  redress  an  injury  to  private  rights  or  interests  from 
the  exercise  by  a  private  corporation  of  a  franchise  or  privilege  not 
conferred  by  law,  does  not  supersede  the  jurisdiction  in  equity  in 
cases  of  private  nuisance.^* 

"  Wash.  &  Bait.  T.  Road  Co.  v.  Tbe  State,  19  Md.  239.  The  particular 
formfl  of  the  pleading,  both  on  the  part  of  the  plaintiff  and  defendant,  are  here 
extensively  discussed,  as  well  as  many  questions  in  regard  to  the  admissibility  of 
evidence. 

»  C.  145,  §  16. 

"  Fall  River  Iron  Works  r.  Old  Colony  &  Fall  River  Railw.,  6  Allen,  221. 


END    OF   VOL.   I. 


APPENDIX  OF  LATER  CASES. 


43 


APPENDIX  OF  CASES 

REPORTED    SINCE   THE    EDITION   WENT   TO   PRESS. 


CORPORATIONS. 

Receivers  appointed  to  close  up  when  same  are  insolvent. 
If  two  receivers  are  appointed  to  close  up  the  concerns  of  a  corporation, 
and  one  of  them  misapplies  the  funds  by  putting  them  to  his  own  private 
use,  and  the  other  is  guilty  of  gross  neglect  of  duty  in  giving  no  attention 
to  the  matters  thus  intrusted  to  his  care  and  supervision,  they  will  be  joint- 
ly liable  for  the  amount  found  due  in  stating  their  account,  and  will  be 
charged  with  interest  thereon,  from  the  time  the  money  was  thus  received 
and  misapplied.     Commonwealth  v.  Eagle  Ins.  Co.,  14  Allen,  344. 

Commissioners  appointed  hy  special  act  of  the  legislature  to  arrange  connec- 
tions between  different  companies. 

In  such  cases,  the  court  will  give  the  award  of  the  commissioners  such 
construction  as  to  secure  to  the  commissioners  scope  for  the  fair  and  full 
exercise  of  the  legal  duties  enjoined  upon  them,  and  no  more. 

Their  award  is  not  held,  in  this  state,  final  and  conclusive  upon  the  rights 
of  the  parties ;  but  is  open  to  future  examination  and  revision.  Eastern 
Railw.  V.  The  Concord  &  Portsmouth  Railw.,  47  N.  H.  108.  This  latter 
view,  as  to  the  proper  effect  of  the  award  of  such  a  board  is  unquestionably 
the  true  view ;  but  the  precise  extent  to  which  the  award  is  re-examinable 
is  somewhat  difficult  to  define.  It  should,  commonly,  only  be  subject  to 
impeachment  for  some  error  or  irregularity  in  the  proceedings  before  the 
board,  or  else  for  favor,  partiality,  or  mistake.  But  some  courts  go  much 
further,  and  some  refuse  to  hear  any  allegations  or  proof  against  the  award. 

Right  of  owner  of  shares  to  demand  registry  of  transfer. 

In  the  absence  of  any  provision  in  the  organic  law  of  the  corporation, 
the  directors  have  no  power  to  refuse  to  register  the  transfer  of  shares. 
Re  Smith  &  Co. ;  Weston's  case,  17  W.  R.  62.  In  the  absence  of  any 
counter-provision  in  the  organic  law  of  a  corporation,  the  shareholders  have 


676  APPENDIX  OF  LATER   CASES. 

a  right  at  any  time  to  get  rid  of  their  shares  by  an  out  and  out  transfer  to 
any  one.  lb.  Transfer  to  an  infant  is  not  void,  but  voidable,  at  his  election 
upon  coming  of  age,  and  not  having  done  it  in  five  months  after  coming  of 
age  he  was  held  bound  thereby.     Ex  parte  Rayner  ;  Re  "Waud,  id.  64. 

Costs  of  litigation  when  properly  chargeable  to  company. 

If  the  litigation  is  undertaken  mala  fide,  and  from  improper  motives  and 
in  respect  of  a  matter  in  which  the  corporation  is  only  collaterally  inter- 
ested, the  costs  cannot  be  charged  upon  the  funds  of  a  municipal  corpora- 
tion. But  if  undertaken  in  the  bona  fide  assertion  of  the  rights  of  the 
corporation,  the  expenses  are  properly  chargeable  to  the  company,  although 
the  litigation  may  not  have  resulted  favorably  to  its  interests.  Reg.  v. 
Tamworth,  17  W.  R.  231.  The  usages  of  the  stock  exchange  as  to  trans- 
fer of  shares  binding  on  parties.     Maxted  v.  Paine,  id.  886. 

Transfer  of  shares  as  collateral  security. 

In  such  case,  the  transferee  is  bound  to  return  the  identical  shares  pledged. 
And  if  he  sell  them,  and  buy  others  of  the  same  description  for  less  price, 
the  debtor  is  entitled  to  receive  the  difference.  But  if  the  debt  being  paid 
and  the  shares  retransferred  before  he  learns  that  he  has  not  received  back 
the  identical  shares,  he  parts  with  them,  so  that  it  is  no  longer  in  his  power 
to  restore  them,  he  is  not  in  condition  to  sustain  his  bill,  founded  upon  an 
offer  to  restore  the  shares  received  by  him.  Langton  v.  Waite,  17  W.  R. 
475. 

Specific  contract  for  sale  of  shares. 

Such  contract  will  be  enforced,  notwithstanding  the  depreciation  of  the 
value  of  the  shares  in  the  market  by  an  unexpected  caU  made.  Hawkins 
V.  Maltby,  17  W.  R.  557  ;  approving  case  between  same  parties,  16  id-  209  ; 
overruling  s.  c.  15  id.  1075  ;  Price  v.  Denb.  R.  &  C.  Railw.  17  id.  572. 

Right  to  inspect  entries  in  hooks  of  company. 

The  court  will  allow  a  passenger  who  sues  a  railway  for  injuries  on  their 
trains,  to  inspect  the  company's  entry  of  accidents  on  report  of  the  guard, 
engineer,  &c.,  kept  in  obedience  to  the  statute.  Woolley  v.  North  London 
Railw.  id.  650  ;  s.  c.  id.  797. 


EMINENT    DOMAIN. 

Location  of  railway  confirmed  by  statute. 

A  statute  which  "  ratifies  and  confirms  "  the  location  of  a  railway,  and 
"  the  railroad  "  "  as  actually  laid  out  and  constructed  "  does  not  exempt  the 


APPENDIX  OF  LATER  CASES.  677 

company  from  liability  for  injuries  caused  to  public  or  private  rights,  by 
the  manner  in  which  they  have  constructed,  or  are  maintaining,  part  of  the 
road  at  the  time  of  the  enactment.     Salem  v.  Eastern  Railw.,  98  Mass.  431. 

Difficulty  of  accest. 

The  difficulty  of  access  to  a  mill,  and  consequent  loss  of  custom  to  the 
same  by  reason  of  the  frequent  passing  of  trains  rendering  it  unsafe,  is 
proper  to  be  considered  in  estimating  land  damages.  Western  Penn. 
Railw.  V.  Hill,  56  Penn.  St.  460. 

Company  when  liable  in  ejectment. 

Where  a  railway  company  takes  possession  of  the  land  of  another,  with- 
out his  consent  and  without  taking  proceedings  to  have  the  land  condemned 
under  their  statutory  powers,  the  owner  may  maintain  an  action  to  recover 
possession  of  the  same.  Graham  v.  Columbus  &  Ind.  C.  Railw.  27  Ind. 
260. 

Relief  by  injunction  for  nuisance  in  navigable  highway. 

The  principle  is  the  same  in  such  cases,  whether  the  nuisance  is  created 
in  a  tidal  or  non-tidal  river.  Attorney  General  r.  Earl  of  Lonsdale,  17  W. 
R.219. 

Notice  to  take  land. 

The  English  courts  regard  this  as  a  purchase  at  the  election  of  the  land- 
owner, and  will  carry  it  into  effect  by  mandamus,  and  give  substantial 
damages,  in  case  of  restoring  the  party  to  his  rights  as  owner  of  the  land. 
Morgan  v.  Met.  RaOw.,  17  W.  R.  261. 

Covenants  against  building  upon  adjoining  lands. 

It  is  no  breach  of  such  covenant  on  the  part  of  the  vendor,  extending  to 
the  act  of  his  assigns  as  well  as  his  own,  that  the  land  has  been  taken  by 
a  railway  company,  since  such  covenant  will  not  extend  to  the  act  of  a 
compulsory  assignee,  like  a  railway  company,  acting  under  their  compulsory 
parliamentary  powers.     Bailey  v.  De  Crespigny,  17  W.  R.  494. 

Extent  of  lien  for  price  of  land  taken  by  railway  company. 

In  the  case  of  Pell  v.  Northampton  &  B.  Railw.  M.  R.  16  W.  R.  1077, 
affirmed  by  L.  C.,  17  id.  308,  it  is  held  that  the  owner  retains  his  lien 
for  the  price  of  the  land  taken  by  a  railway  company,  and  upon  which  by 
the  vendor's  consent  the  company  have  constructed  and  opened  their  road, 
and  given  security  for  the  price,  upon  which  part  of  it  had  been  recovered 
by  suit. 

The  holder  of  a  rent  charge  in  security  for  the  price  of  land  taken  by  a 


678  APPENDIX  OF  LATER  CASES. 

railway  company,  has  a  lien  superior  to  the  debenture  holders  of  the  com- 
pany.    Eyton  V.  Denb.  R.  &  C.  Railw.,  17  W.  R.  646. 

May  take  land  for  substituted  road,  even  when  not  strictly  indispensable. 

It  will  not  deprive  a  railway  company  of  the  power  to  take  land  for  the 
purpose  of  constructing  a  new  way  in  place  of  one  used  by  them,  that  they 
already  have  land  upon  which  they  might  build  this  way,  but  for  their  pur- 
pose of  using  such  land  for  the  site  of  a  public  house.  Lamb  v.  The  North 
London  Railw.,  17  W.  R.  746. 

Extent  of  powers  of  company  in  building  branches  and  new  lines. 

In  Morris  &  Essex  R.  R.  v.  Central  Railw.,  2  Vroom,  205,  it  was 
decided : 

1.  The  Central  Railroad  Co.,  was  chartered  Feb.  20,  1847,  and  has  for 
many  years  owned  and  used  a  road  between  Elizabethport  and  Phillips- 
burgh.  Their  charter  authorized  them  to  construct  a  "  railroad  or  lateral 
roads,"  with  a  branch  road  between  certain  termini,  and  gave  power  to 
build  and  maintain  at  the  Delaware  River,  or  within  thirteen  miles  of  the 
borough  of  Easton,  such  wharves,  piers,  bridges,  and  other  facilities  as 
they  might  think  expedient  and  necessary  for  the  full  enjoyment  of  all  the 
benefits  conferred  by  the  charter. 

2.  In  May,  1860,  the  Morris  &  Essex  Railway,  the  plaintiff,  filed  the 
survey  of  a  route,  for  the  extension  of  their  road  from  Hackettstown  to 
the  Delaware,  at  Phillipsburgh,  and,  in  1863,  purchased  lands  in  Phillips- 
burgh,  on  the  line  of  said  route,  upon  which,  they  constructed  the  road-bed 
as  early  as  April  1,  1864. 

3.  On  March  24, 1864,  the  defendants  filed  a  survey  or  location  of  a  part 
of  their  road,  in  the  village  of  Phillipsburg,  the  route  of  which  survey 
crossed  the  location  of  the  extension  above  mentioned,  thus  giving  to  the 
defendants  a  new  access  to  the  Delaware  River.  They  afterwards  applied 
to  have  damages  appraised  for  the  lands  so  to  be  taken.  An  award  having 
been  made,  the  proceedings  were  removed  to  this  court  by  certiorari.  Held, 
by  the  court : — 

1.  That  the  defendants'  road  having  been  completed  and  in  use,  and  the 
branch  now  proposed  to  be  made,  having  formed  no  part  of  the  original 
plan  in  making  the  road,  they  had  no  right  to  add  such  branch  under  any 
provision  of  the  charter. 

2.  That  the  charter  gave  to  the  defendants  no  authority  to  add  a  branch 
or  spur  to  their  road.  Having  laid  out  the  road  according  to  the  charter  as 
they  understood  it,  their  powers  were  exhausted. 

3.  That  the  term  limited  for  taking  land  under  the  charter  had  expired, 
and  the  right  of  eminent  domain  conferred,  no  longer  existed. 

4.  By  the  7th  section  of  the  defendants'  charter,  it  is  provided  that  it  shall 


APPENDIX  OP  LATER  CASES.  679 

be  lawful  for  the  company  to  change  or  alter  the  location  of  said  road,  or  to 
locate  new  lines  when  additional  lines  shall  be  required  at  any  point  or 
points  between  Phillipsburgh  and  Elizabethport,  not  varying  in  any  case 
over  one  mile  from  the  line  located  and  filed.     The  court  held^  — 

1.  That  as  the  company  had  not  since  the  passage  of  the  act  established 
any  new  lines,  its  power  in  that  respect  was  not  exhausted. 

2.  That  by  the  terms  "  between  Phillipsburgh  and  Easton,"  as  used  in 
the  charter,  these  two  places  being  the  termini  of  the  road,  are  not  excluded. 

3.  To  authorize  the  Central  Railway  to  cross  the  track  of  the  Morris  and 
Essex  road,  it  is  not  necessary  that  any  express  power  should  be  given  in 
the  charter. 

When  cuseasment  of  land  damages  to  be  set  aside. 

When  in  the  assessment  of  damages  for  lands  taken  for  the  purpose  of  a 
railway,  it  appears  to  the  court  that  injustice  has  been  done  through  some 
mistake  or  misapprehension  of  the  jury,  the  verdict  should  be  set  aside. 
Cadmus  v.  Central  R.  R.  Co.,  2  Vroom,  179. 

77te  interest  of  a  railway  company,  laid  in  the  streets  of  a  city,  in  such  streets. 

A  railway  corporation,  whose  track  is  laid  in  the  streets  of  a  city,  has  no 
such  interest  in  the  street  as  will  entitle  them  to  move  for  an  injunction 
against  another  company  for  laying  another  track  in  the  same  street,  so 
remote  from  the  track  of  the  first  company,  as  not  in  any  manner  to  inter- 
fere with  the  use  of  same.  N.  Y.  &  H.  Railw.  v.  Forty-Second  Street  & 
G.  S.  F.  Railw.,  50  Barb.  285  ;  8.  c.  id-  309. 

Injuries  to  land  affecting  easements  therein,  not  taking  of  land. 

A.  being  an  owner  of  a  nail  factory,  together  with  the  easement  or  right 
to  carry  the  waters  of  a  creek  across  a  certain  parcel  of  land  thereto,  the 
defendant,  for  the  purpose  of  constructing  its  railway,  acquired  by  pur- 
chase a  portion  of  the  land  subject  to  such  easement.  The  road  being 
constructed  in  such  manner  and  upon  such  a  grade  that  the  water  could 
no  longer  be  conveyed  to  the  factory  across  the  land  in  a  straight  trunk, 
the  defendant  took  down  the  original  raceway,  and  carried  the  water  under 
the  railway  track  in  a  new  trunk  built  for  that  purpose.  A.  accepted  the 
new  structure  without  objection,  and  used  the  water  flowing  through  it  during 
his  life:  Held,  that  such  acceptance  of  the  substituted  structure  was,  in 
judgment  of  law,  a  compensation  for  all  damages  sustained  by  A.  in  conse- 
quence of  the  removal  of  the  original  raceway.  Arnold  v.  The  Hudson 
River  Railw.  Co.,  49  Barb.  108. 

The  legislature  may  rightfully  authorize  the  construction  of  railways, 
or  other  works  of  public  nature,  without  requiring  compensation  to  be 
made  to  persons  whose  property  has  not  been  actually  taken  or  appro- 


680  APPENDIX  OP  LATEB  CASES. 

priated  for  the  use  thereof,  but  who  may,  nevertheless,  suffer  indirect  or 
consequential  damages  by  the  construction  of  such  works.     lb. 

The  case  of  a  railway  company  acquiring  its  roadway,  subject  to  an 
easement  or  servitude  appurtenant  to  mill  property,  consisting  of  the  right 
to  carry  water  across  the  land  of  another  to  the  mill,  is  within  the  above 
principle.     lb. 

If  the  owners  suffer  an  injury,  by  having  an  easement  impaired,  this  is 
an  injury  which  the  property  suffers  in  consequence  of  the  construction  of  a 
public  work  under  legal  authority,  and  not  the  taking  of  the  property.     lb. 

Such  a  loss  is  to  be  regarded  as  damnum  absque  injuria,  except  in  cases 
where,  by  statute,  compensation  is  required  to  be  made.     lb. 

The  principle  of  the  last  case  is  also  maintained  in  Cleveland  &  Pitts- 
burgh Railw.  V.  Speer,  56  Penn.  St.  325. 

It  was  further  held  in  this  case,  that  where  the  grant  for  a  railway  is 
defined  by  the  extreme  termini,  and  the  company  have  once  definitely 
located  the  same,  they  have  no  further  right  to  change  the  route.  In  the 
first  instance,  they  had  an  unlimited  discretion  where  to  locate  the  same, 
and  for  that  purpose  might  use  streets  or  highways.  And  if  the  act  of 
location  were  voidable,  none  but  the  commonwealth  could  interfei'e.  But 
railways  are  not  precluded  from  changing  the  point  of  a  switch  and  other 
arrangements  in  regard  to  their  track,  within  the  limits  of  the  land  appro- 
priated to  their  road.     lb. 

Responsibility  of  company  for  legal  use  affranchise. 

A  citizen  cannot  maintain  an  action  against  a  railway  company  for 
injury  to  his  property  by  reason  of  noise,  smoke,  and  offensive  odors,  caused 
by  the  side  tracks  and  the  locomotives  being  placed  near  his  dwelling.     lb. 

In  estimating  land  damages  for  the  construction  of  a  railway,  all  such 
natural  and  probable  consequences  of  the  works  as  would  occur  to  the  mind 
of  an  intelligent  viewer  must  be  allowed ;  but  not  such  as  might  result 
firom  improper  construction,  which  the  company  have  no  right  to  do,  and 
are  responsible  in  damages  for  doing.  But  the  company  are  liot  respon- 
sible for  not  building  a  culvert,  so  as  to  carry  off  the  water  of  an  extraor- 
dinary flood.     Pittsburgh,  Ft  Wayne,  &c.  Railw.  v.  Gilleland,  id.  445. 

Company  cannot  assign  powers. 

The  company,  being  imable  to  raise  money  to  build  their  road,  cannot 
delegate  their  powers  to  a  natural  person ;  and  if  that  is  attempted,  and 
the  road  so  constructed,  a  bill  in  equity  will  lie  against  such  person  to 
restrain  him  from  creating  a  nuisance  to  the  adjoining  property.  Stewart 
&  Foltz's  Appeal,  id.  413. 


APPENDED  OF  LATER  CASES.  681 

Effect  of  acquiescence  on  the  part  of  railway  company. 

The  mere  existence  and  use,  for  seventeen  years,  of  a  turnout  from  the 
main  track  of  a  railway  company,  chartered  for  general  purposes,  and  the 
receipts  by  the  company  from  the  owner  of  the  turnout  for  mending 
the  turnout,  &c,  do  not  give  him  an  irrevocable  right  to  maintain  a  frog 
and  switch  on  such  railway.  Heyl  v.  Phil.,  W.  &  B.  Railw.  Co.,  51 
Penn.  469. 

An  incorporated  railway  company  is  a  trustee  of  the  right  of  way  for  the 
commonwealth  for  the  use  of  her  citizens ;  and  a  permissive  privilege  from 
such  company  differs  entirely  from  a  privilege  on  private  property  by 
individuals,  where  the  expenditure  of  money  is  to  be  attributed  to  a  mutual 
understanding  that  the  privilege  should  remain  unaltered.     lb. 

Time  and  mode  of  exercising  compulsory  powers  against  land-owners. 

The  charter  of  the  Philadelphia,  Wilmington,  and  Baltimore  Rail- 
way authorizes  them,  "  as  soon  as  they  conveniently  can,"  to  construct  a 
road  with  one  or  more  tracks  and  to  make  and  erect  "  such  warehouses," 
and  all  the  works  and  appendages  for  the  convenience  of  the  said  company 
for  the  use  of  said  railroad."  This  gives  the  right  to  construct  sidings, 
turnouts,  stations,  engine-houses,  and  all  works  and  appendages  usual  in  the 
convenient  operation  of  a  railway.  Phil.,  Wil.,  &  Bal.  Railw.  v.  Williams, 
54  Penn.  103. 

The  expression,  "  as  soon  as  they  conveniently  can  locate  and  construct," 
is  not  a  limitation  upon  the  power  to  compel  the  company  to  exercise  its 
whole  authority  in  the  very  beginning.     lb. 

It  is  not  the  special  use  made  of  the  property  taken  which  characterizes, 
but  its  convenient  necessity  for  public  use.     lb. 

The  charter  giving  power  to  take  land,  gives  power  to  take  a  right  of 
way  over  it,  under  the  maxim,  omne  majus  continet  in  se  minus.     lb. 

The  charter  of  the  company  provides  for  compensation  for  taking  the 
right  of  way,  and  its  owner  may  have  a  view  to  assess  the  damages  when- 
ever his  right  is  directly  injured  by  entry  upon  the  land.     lb. 

"  Owners  of  such  acquired  land "  includes  all  owners  of  titles  in  or 
growing  out  of  the  land,  whose  rights  are  capable  of  actual  privation  by 
taking.     lb. 

The  remedy  for  obstructing  a  right  of  way  by  a  railway  track  under  this 
charter,  is  not  by  action  denying  the  right  of  entry  to  take  the  land,  but  by 
application  for  the  assessment  of  damage.     lb. 

A  land-owner  said  to  the  president  of  a  railway  company,  when  en- 
deavoring to  settle  for  damages,  that  if  they  would  run  the  road  "  further 
over"  from  his  house  and  spring,  he  would  give  the  land  occupied  for 
nothing ;  and  the  president  said  he  would  try  to  accommodate.     Heidj  that 


682  APPENDIX   OP  LATER   CASES. 

this  was  too  slight  to  prove  the  grant  of  a  right  of  way  or  release  of  dam- 
ages ;  for  there  was  no  designation  of  the  land  released.  East  Penn.  Railw. 
V.  Schollenberger,  54  Penn.  144. 

The  promise  to  try  to  accommodate  was  not  an  acceptance  of  the 
offer.     lb. 

The  right  of  passage  which  a  railway  corporation  acquires  across  land  is 
an  interest  in  the  land,  and  must  come  by  private  purchase  or  under  the 
eminent  domain  which  the  state  has  vested  in  them.     lb. 

If  the  company  had  the  right  to  deposit  stone  and  earth  on  land  outside 
the  sixty  feet  appropriated  to  the  road,  it  was  in  some  sense  taking  the 
land,  and  was  a  proper  subject  for  compensation.     lb. 

Concessions  by  natural  persons  to  public  company  construed  strictly. 

Where  a  railway  company  claim  to  lay  their  track  upon  the  land  of 
another,  without  compensation,  and  in  violation  of  the  constitutional  rights 
of  the  land-owner,  upon  the  assertion  of  his  contract  or  assent,  it  is  incum- 
bent upon  them  to  show  by  written  contract,  or  very  satisfactory  proof, 
that  they  are  acting  in  conformity  to  the  terms  of  the  concession.  Unangst's 
Appeal,  55  Penn.  St.  128. 

Right  to  inter  upon  lands  for  preliminary  surveys. 

The  legislature  may  grant  the  right  to  enter  upon  land  for  the  purpose 
of  preliminary  surveys,  without  compensation.  Fox  v.  "Western  Pacific 
Railw.,  31  Cal.  538. 

Eule  of  estimating  land-damages. 

The  measure  of  damages  for  building  a  railway  through  a  man's  land, 
is  the  difference  between  the  value  of  the  property  before  and  after  building 
the  road.  Hornstein  v.  Atlantic  &  Gt.  West.  Railw.,  51  Penn.  St.  87  ; 
s.  p.  in  S.,  F.,  A.  &  S.  Railw.  v.  Caldwell,  31  Cal.  867. 

Such  advantages  only  as  are  special  and  peculiar  to  the  property  in 
question,  not  common  to  the  public,  are  to  be  considered.     lb. 

The  viewers  and  the  jury  in  court  are  to  balance  the  advantages  that  are 
special  against  the  disadvantages  that  are  actual,  and  decide  how  much  less 
the  land  would  bring  in  the  market  by  reason  of  the  road.     lb. 

The  owner  of  land  adjoining  a  public  street  in  a  town  or  village,  after  a 
public  railway  is  legally  laid  and  established  upon  the  street,  has  no  claim 
for  additional  land  damages  because  the  company  remove  the  track  nearer 
to  his  land  than  it  was  first  laid.  That  is  a  privilege  inherent  in  the  public 
authority,  and  which  the  company  may  exercise  by  delegation.  Snyder  v. 
Penn.  Railw.,  55  Penn.  St.  340.  This  case  seems  to  assume  the  ground, 
that  the  laud-owner  whose  land  is  once  appropriated  for  a  highway  has  no 


APPENDIX  OP  LATER  CASES.  683 

additional  claim  for  damages  by  reason  of  it  being  thereafter  appropriated, 
also  to  the  additional  servitude  of  the  railway  track,  which  claim  has  been 
abandoned  in  most  of  the  other  states  as  no  longer  tenable. 


CONTRACTS. 


Such  errors  as  are  apparent,  being  errors  of  computation,  may  be  set  right 
by  a  court  of  equity.     Neill  v.  The  Midland  Railw.,  17  W.  R.  871. 


RESTRICTIONS    IN   REGARD    TO    TOLLS. 

By  the  charter  of  the  Philadelpliia  &  Reading  Railway,  it  was  provided 
that  the  "  toll  on  any  property  transported  should  not  exceed  four  cents  per 
ton  per  mile,  and  on  each  passenger  two  cents."  Held,  that  they  might 
charge  for  transportation  in  addition  to  the  toll.  Boyle  v.  Phil.  &  Reading 
Railw.,  54  Penn.  St.  310. 

The  company  was  incorporated  as  a  railroad  and  transportation  com- 
pany,    lb. 

The  legislature  is  presumed  to  have  used  words  in  their  ordinary  sig- 
nification,    lb. 

"  Toll "  is  a  tribute  or  custom  paid  for  passage,  not  for  carriage  ;  some- 
thing taken  for  a  liberty  or  privilege,  not  for  a  service.     lb. 

A  corporation  authorized  to  engage  in  a  business,  as  a  necessary  incident 
to  their  authority  has  the  right  ordinarily  belonging  to  such  business,  and 
compensation  for  services  is  inseparable  from  the  right.     lb. 

When  several  distinct  powers  are  given  by  one  statute,  the  restriction 
imposed  on  one  are  not  restrictions  on  the  others.     lb. 


FIRES    CAUSED   BT   SPARKS   FROM    COMPANIES*   ENGINES. 

In  such  cases  the  company  is  responsible,  where  the  fire  first  communi- 
cated spreads  in  a  direct  line,  without  any  break,  across  the  lands  of  several 
different  proprietors,  and  a  highway,  to  woodlands  half  a  mile  distant  from 
the  railway.  Perley  v.  Eastern  Railw.,  98  Mass.  414.  And  it  is  com- 
petent for  the  jury  to  find,  in  such  case,  that  the  back  fires  kindled  in  a 
vain  effort  to  stop  the  progress  of  the  flames,  which  were  swallowed  up  as 
it  advanced,  did  not  contribute  to  the  plaintiff's  loss.     lb. 

The  use  of  any  ordinary  fuel  to  make  steam  in  engines  on  a  railway  is 


684  APPENDIX  OF  LATER  CASES. 

legal.  The  limit  on  its  use  is,  that  the  latest  improvements  in  its  manage- 
ment in  practical  use  should  be  applied  to  it.  Lackawanna  &  Blooms. 
Railw.  V.  Doak,  52  Penn.  St.  379. 

A  building  near  a  railway  was  found  to  be  on  fire,  whilst  a  train  drawn 
by  an  engine  without  a  "  spark-catcher  "  was  passing ;  there  was  no  direct 
evidence  that  the  fire  had  been  communicated  from  the  engine.  Held, 
that  it  was  proper  for  the  court  to  submit  the  question  of  negligence  to  the 
jury.     lb. 

It  is  the  duty  of  a  railway  company,  in  the  use  of  an  engine,  to  use  such 
precaution  as  might  reasonably  prevent  damage  to  others ;  and  failure  to 
do  so  is  negligence.     lb. 

There  being  in  the  charter  of  a  railway  company  no  prescribed  limit  of 
approach  towards  buildings  and  bridges,  the  company  may  locate  their 
roads  and  stations  on  such  route  and  at  such  points  as  in  their  judgment 
will  be  beneficial  to  their  own  and  the  public  interest.  Frankford  & 
Bristol  Turnpike  r.  Philadelphia  &  Trenton  Railw.,  54  Penn.  St.  345. 

The  emission  of  sparks  from  the  stack  of  a  locomotive  is  not  in  itself 
illegal ;  and  the  loss  of  property  adjacent  to  a  railway  from  the  sparks, 
apart  from  the  nuisance,  is  damnum  absque  injuria.     lb. 

The  law  in  conferring  the  right  to  use  an  element  of  danger,  protects  the 
person  using  it,  except  for  the  abuse  of  his  privilege ;  but  in  proportion  to 
its  danger  will  arise  the  degree  of  caution  and  care  he  must  use.     lb. 

Great  danger  demands  higher  vigilance  and  more  eflBcient  means  to 
secure  safety.     lb. 

It  is  the  duty  of  railway  companies  running  their  engines  close  to  build- 
ings, to  use  the  utmost  vigilance  and  foresight  to  avoid  injury.     lb. 

It  is  the  duty  of  companies  to  control  their  engines  carefully,  to  adopt 
every  known  safeguard,  and  to  avail  themselves  from  time  to  time  of  every 
approved  invention  to  lessen  their  danger.     lb. 

Questions  of  skill,  vigilance,  care,  and  proper  management  in  any  busi- 
ness, are  questions  of  fact  to  be  referred  to  the  jury.     lb. 

The  degree  of  care  having  no  legal  standard,  such  care  must  be  required 
as  is  onlinarily  sufficient,  under  similar  circumstances,  to  avoid  the  danger, 
and  secure  the  safety  needed.     lb. 

It  is  the  duty  of  railway  companies  to  adopt  the  best  precautions  against 
danger  in  use ;  and  it  is  not  sufficient  for  them  to  exercise  what,  under 
circumstances  of  less  risk,  would  be  ordinary  care.     lb. 

The  court  below  charged,  "  if  the  defendants  used  ordinary  skill  in  pro- 
curing a  good  and  safe  spark-catcher,  such  as  are  most  in  use  in  the  coun- 
try, and  approved  by  experienced  railway  operators  and  mechanics,  they 
would  not  be  required  to  use  any  other  or  greater  care  or  skill  in  respect 
to  the  spark-catcher  used  by  them."     Held,  not  to  be  error.     lb. 

Evidence  of  the  practice  and  common  use  of  the  stack  by  many  others 


APPENDIX  OP  LATER  CASES.  685 

in  the  same  business  is  admissible  on  the  question  of  the  safety  of  the 
stack.     lb. 

If  the  construction  of  the  stack  was  that  which  was  best  adapted  for  the 
purpose  in  known  practical  use,  the  duty  of  the  company  was  per- 
formed,    lb. 

Negligence  is  the  absence  of  care  according  to  the  circumstances.     lb. 


INJURIES   TO   DOMESTIC   ANIMALS. 

A  party  whose  cattle,  without  fault  on  his  part,  escape  from  his 
enclosure,  and  wander  upon  a  railway  track,  and  are  there  killed  by  alleged 
carelessness  in  not  slackening  the  8j>eed  of  the  locomotive,  cannot  recover 
for  their  loss  from  the  railway  company.  Price  v.  New  Jersey  Railroad 
&  Transp.  Co.,  2  Vroom,  229. 

There  are  some  very  sensible  suggestions  in  Card  v.  New  York  & 
Harlem  Railw.,  50  Barb.  39,  in  regard  to  the  duty  of  an  engineer,  when 
he  |)erceives  that  his  track  is  obstructed  by  cattle.  He  is  not  to  assume 
that  travellers  upon  the  highway,  either  when  driving  cattle  or  not,  will 
always  conduct  with  entire  prudence  and  discretion  ;  but  he  is  bound  to  know 
and  to  remember  that  this  is  not  always  the  case,  and  to  exercise  the  more 
watchfulness  to  avoid  collisions,  and  especially  where  he  already  sees 
evidence  of  exposure,  either  carelessly  or  not.  And  the  fact  that  the 
driver  of  the  animals  was  not  without  fault  will  not  excuse  the  company, 
if  they  were  reckless  or  careless,  and  but  for  that  the  injury  would  not 
have  occurred. 

Cattle  suffered  to  go  at  large  hy  law. 

Where,  by  the  laws  of  the  state,  the  owner  of  animals  is  not  bound 
to  confine  his  stock  within  his  own  enclosures,  or  where  such  a  rule  is 
established  by  the  towns  or  cities,  the  owner  is  not  guilty  of  negligence 
in  not  confining  them  ;  but  he  may  be  guilty  of  such  wilful  misconduct  in 
regard  to  his  animals  as  to  render  himself  liable  to  a  railway  company  for 
damages  caused  by  their  being  upon  the  track.  Hannibal  <&  St.  Jo.  Railw. 
V.  Kenney,  41  Mo.  271. 

But  in  such  case  the  company  are  not  bound  to  exercise  any  special 
watchfulness  in  regard  to  cattle;  but  must  conduct  their  business  with 
reference  to  their  being  allowed  to  run  at  large,  and  not  injure  them,  if  it 
can  be  reasonably  avoided.     Mich.  So.  &  No.  Ind.  v.  Fisher,  27  Ind.  96. 

Cattle,  estrayt,  Sfc. 

One  who  negligently  suffers  his  sheep  to  stray  upon  a  railway,  where 
they  are  killed  by  a  passing  train,  has  no  cause  of  action  against  the  com- 


686  APPENDIX   OP  LATER   CASES. 

pany.  Eames  v.  Salem  &  Lowell  Railw.,  98  Mass.  560 ;  Chicago  &  Alton 
Railw.  V.  Utley,  38  111.  410. 

The  statute  making  railways  responsible  for  all  damages  done  to  cattle, 
without  reference  to  any  other  consideration  except  the  mere  fact  of  having 
done  the  damage,  is  a  police  regulation  for  the  security  of  passengers,  and 
applies  to  companies  organized  under  special  charters,  as  well  as  under 
the  general  law,  and  has  reference  to  all  animals  which  may  be  con- 
trolled by  fences.  Indianapolis  P.  &  C.  Railw.  v.  Marshall,  27  Ind. 
300. 

In  regard  to  sufficiency  of  the  averments  against  a  railway  company  for 
killing  stock,  see  Great  Western  Railway  v.  Hanks.,  36  111.  281. 

No  more"  than  the  value  of  animals  killed  can  be  recovered,  unless 
there  is  proof  of  wantonness  or  wilful  injury.  Toledo,  P.  &  W.  Railw.  v. 
Arnold,  43  lU.  418. 


FENCES. 

The  doctrine  of  the  case  of  Shepherd  v.  Buffalo,  &c.,  Railw.,  35  N.  Y. 
641,  ante,  vol.  1,  p.  471,  affirmed.  Tracy  v.  Troy  &  Boston  Railw.,  38 
N.  Y.  433. 

The  fact  that  a  railway  crossing  is  near  a  station,  where  it  would  be  in- 
convenient to  construct  a  cattle  guard,  will  not  excuse  the  company 
from  compliance  with  the  positive  requirements  of  the  statute  to  that 
effect.     lb. 

One  company  running  its  engines  over  the  track  of  another  company, 
by  special  license  or  permanent  contract,  or  as  lessee  or  joint-owner,  is 
equally  responsible  for  damages  done  to  cattle,  through  defect  of  fences,  as 
would  be  the  company  owning  the  track,  for  committing  a  similar  injury  in 
the  same  mode.  lb.  s.  p.  Toledo  &  P.  &  W.  Railw.  v.  Rumbold,  40  111. 
143. 

A  statute,  induced  by  public  consideration,  in  order  to  protect  passen- 
gers and  the  owners  of  domestic  animals,  along  the  line  of  the  road,  should 
receive  a  liberal  construction  to  effect  the  benign  purpose  of  its  framers ; 
and  every  statute  should  be  expounded,  not  according  to  the  letter,  but 
according  to  the  meaning.     lb. 

5.  The  "  suitable  "  fences  required  by  statute,  to  be  maintained  by  rail- 
ways, need  not  necessarily  be  such  as  are  required  to  be  maintained  between 
adjoining  proprietors  of  lauds,  and  which  by  statute  are  called  legal  and 
sufficient.  Eames  v.  Salem  &  Lowell  Railw.,  98  Mass.  560.  But  in 
Enright  v.  San  F.  &  San  J.  Railw.,  33  Cal.  230,  it  is  held  that  "  sufficient 
fences  "  in  such  a  statute  must  be  considered  as  "  referring  to  and  adopting 
the  general  law  fixing  the  standard  of  lawful  fence,"^and  with  great  rea- 


APPENDIX  OP  LATER  CASES.  687 

son  as  it  seems  to  us.  But  see  Chicago  &  Alton  Railw.  v.  Utlej,  38 
111.  410. 

liailways  are  required  to  build  fences  along  the  line  of  their  roads,  for 
the  protection  of  adjoining  proprietors,  and  if  waived  by  the  latter  the  com- 
pany are  not  responsible  for  injury  to  cattle  in  consequence  of  the  fence 
not  being  built     Enright  t\  San  F.  &  San  J.  Railw.,  33  Cal.  230. 

Where  the  owner  of  land  adjoining  a  railway,  for  whose  benefit  and  at 
whose  request  the  company  construct  an  insufficient  bar<way,  acquiesces  in 
the  use  of  the  same  without  objection,  he  cannot  afterwards  recover  of  the 
company  for  any  loss  in  consequence  of  such  deficiencies.  lb. 

The  question  of  the  obligation  of  the  company  to  build  fence  at  a  par- 
ticular place,  is  one  of  law,  and  should  not  be  submitted  to  the  jury.  Illinois 
Central  Railw.  v.  Whalen,  42  111.  396. 

A  railway  company,  in  purchasing  the  right  of  way,  bound  itself  by  con- 
tract with  the  owner  of  land  through  which  the  road  passed,  to  fence  the 
road  through  his  land.  The  company  neglected  to  fence,  and  the  owner's 
cattle  being  on  his  land,  went  upon  the  road,  and  were  killed  by  the  engines. 
Held,  that  he  could  not  recover  damages  for  the  injury  in  an  action  of  tort. 
Drake  v.  Pliil.  &  Erie  Railw.,  51  Penn.  St.  240. 

He  should  have  built  the  fences  himself,  before  turning  his  cattle  upon  the 
land  and  was  guilty  of  inexcusable  negligence  in  thus  exposing  them  to 
almost  certain  injury.  The  company  having  purchased  the  right  of  way 
for  a  fixed  sum  of  money,  and  an  agreement  to  fence,  the  owner  had  no  right 
to  obstruct  the  road  by  allowing  the  cattle  to  roam  upon  it. 

But  in  Fernow  v.  Dubuque  &  So.  Western  Railw.,  22  Iowa,  528,  it  was 
held  the  company  were  responsible  in  such  case  ;  and  that  seems  to  be  the 
general  opinion.  To  render  the  defendants  liable,  it  must  appear  that  the 
disaster  was  exclusively  the  result  of  their  neglect ;  the  plaintiff's  cattle  being 
on  the  road,  when  they  ought  not  to  be,  he  could  not  recover.     lb. 

Whether  the  plaintiff  could  recover  for  the  loss  of  his  cattle  by  an  action 
on  the  contract,  not  decided.     lb. 

Company  not  bound  to  fence  against  cattle  trespassing. 

A  railway  is  not  bound  to  maintain  a  fence  on  the  line  of  its  road  against 
cattle  unlawfully  in  a  pasture  adjoining.  Mayberry  v.  Concord  Railw., 
47  N.  H.  891. 

Whether  it  would  be  otherwise  if  the  owner  of  the  cattle  was  in  posses- 
sion of  the  pasture  by  disseisin,  qucere.     lb. 


INJURY   BY    FELLOW-SEKVANTS    OR   MACHINERY. 

A  master  who  has  used  due  diligence  in  the  selection  and  employment 
of  his  servants,  is  not  responsible  for  an  injury  done  to  one  of  them  by  the 


688  APPENDIX  OF  LATER  CASES. 

carelessness  of  another,  in  the  course  of  their  common  employment.  Har- 
rison Adm'x.  r.  Central  Railw.,  2  Vroom,  293. 

A  railway  company  are  responsible  to  an  employee  for  all  damages 
resulting  from  their  own  misconduct ;  but  to  warrant  a  recovery,  the  fault 
or  misconduct  must  be  that  of  the  company  themselves,  and  not  simply  the 
negligence  of  a  fellow-servant.     lb. 

An  employer  contracts  with  his  employee  to  use  reasonable  diligence  to 
protect  him  from  unnecessary  risks ;  and  for  the  omission  of  such  diligence, 
which  is  equivalent  to  negligence  or  want  of  care,  he  will  be  answerable  to 
the  action  of  such  employee  for  all  damages  that  may  ensue.    lb. 

The  company  are  not  responsible  for  the  negligence  of  a  servant,  by 
which  damage  accrues  to  a  fellow-servant,  unless  wanting  in  proper  care  in 
the  selection  of  such  servant,  or  of  improperly  continuing  him  in  their 
service,  or  for  injury  to  servant  from  machinery,  unless  it  was  unsuitable 
for  use.     Weger  v.  Penn.  Railw.,  55  Penn.  St.  460. 

The  servant  is  by  no  means  entitled  to  the  same  redress  for  injuries  as  a 
passenger.  The  presumption  from  injury  in  the  case  of  the  latter  is  against 
the  company ;  but  in  the  case  of  the  servant,  the  presumption  is  against  the 
servant.  lb.  Where  the  injury  happened  by  reason  of  the  foreman's  watch 
being  behind  time,  and  his  directing  the  hands  to  go  upon  the  track  when  a 
train  was  due,  the  company  were  held  not  responsible.     lb. 

See  also  to  same  effect,  Shauck  v.  Northern  Central  Railw.,  25  Md.  462  ; 
S.  P.  Pittsburgh,  Ft.  Wayne  &  Chicago  Railw.  v.  Devinney,  17  Ohio,  N.  S. 
197 ;  Warner  v.  Erie  Railw.  Co.,  39  N.  Y.  468. 

Responsihility  of  master  for  tortious  acts  of  servant. 

The  master  was  not  held  reponsible  for  his  servant  driving  the  master's 
cart  against  another  in  the  street,  when  the  servant  left  the  line  of  the 
master's  business  and  went  some  distance  out  upon  his  own  business,  during 
which  deviation  the  injury  occurred.     Storey  v.  Ashton,  17  W.  R.  727. 


INJUBIBS    IN  THE   NATUBE   OF   TORTS. 

The  maxim  —  "So  use  your  own  property  as  not  to  injure  the  rights  of 
another "  —  is  applicable  alike  to  corporations  and  individuals.  Hill  v. 
Portland  &  Rochester  Railw.,  55  Me.  438. 

A  railway  corporation  has  the  right  to  establish  reasonable  signals,  to  be 
given  for  the  starting  of  trains  from  its  station.     lb. 

Whether  or  not  the  loud  and  sudden  sounding  of  a  steam-whistle  is  a 
reasonable  signal  for  such  purpose,  and  within  the  rule  of  ordinary  care, 
depends  upon  all  the  circumstances  of  each  particular  case ;  and  it  is  a 
question  for  the  jury.    lb. 


APPENDIX  OP  LATER  CASES.  689 

In  the  trial  of  an  action  for  personal  injury  to  the  plaintiff,  caused  by 
being  thrown  from  his  carriage  in  consequence  of  his  horse  becoming 
frightened  at  the  sound  of  a  locomotive  whistle,  at  a  railway  crossing  near 
a  station,  it  is  competent  for  the  plaintiff  to  show  that  the  sound  of  the 
whistle  produced  a  similar  effect  upon  other  horses,  at  the  same  time  and 
place.     lb. 

Also  to  show  the  usual  effect  of  that  whistle,  at  the  same  place,  on  ordi- 
nary horses.     lb. 

It  is  not  competent  for  the  corporation  to  ask  a  witness  acquainted  with 
the  practice  of  railways  generally,  and  who  had  the  charge  of  another  rail- 
way for  sixteen  years,  whether  or  not,  in  his  opinion,  the  signals  in  question 
were  "  reasonable  or  unreasonable,"  "  prudent  or  extraordinary,"  or  whether 
or  not  similar  signals  were  given  by  other  railway  corporations.     lb. 

One  who  approached  a  railway  at  a  point  in  a  town  where  he  had  often 
crossed,  muffled  in  his  coat  within  the  covered  top  of  his  wagon,  taking  no 
notice  of  the  railway,  and  drove  slowly  upon  the  track  without  stopping 
or  looking  out,  was  guilty  of  negligence.  Hanover  R.  Co.  v.  Coyle,  55 
Penn.  St.  396. 

In  an  action  against  a  railway  for  injuring  the  plaintiff  by  negligence, 
the  court  below  admitted  declarations  of  the  engineer,  by  whose  negligence 
the  plaintiff  was  injured,  made  at  the  time  of  the  injury,  as  part  of  the  res 
gest<e,  and  it  was  held  not  to  be  error.     lb. 

The  plaintiff  was  a  pedler;  evidence  of  the  annual  amount  of  his  sales, 
the  profit  he  made,  tended  to  show  the  amount  he  might  have  earned  if  he 
had  been  able  to  attend  to  his  business,  and  was  admissible.     lb. 

In  the  case  of  Wilcox  v.  Rome  &  Watertown  Railw.,  39  N.  Y.  358, 
the  general  question  of  the  duty  of  travellers  and  railway  companies  at 
road  crossings  is  considerably  discussed,  and  it  is  said  that  it  is  the  duty  of 
the  traveller  before  crossing  a  railway  track  to  look  out,  and  also  to  listen, 
for  an  approaching  train,  and  if  it  appears  that  he  might  have  seen  it  if  he 
had  looked,  and  he  was  killed  in  crossing,  it  will  be  presumed  he  did  not  look, 
and  so  was  guilty  of  culpable  neglect,  which  will  preclude  any  recovery, 
on  account  of  the  death.  And  the  fact  that  the  company  omit  the  statute 
duty  required  of  them,  in  not  ringing  the  bell  and  sounding  the  whistle, 
will  not  excuse  the  traveller  in  omitting  any  precaution  to  insure  his 
safety.     lb. 

Where  a  passenger  carrier  by  steamboat  was  sued  for  injury  to  another 
boat  through  want  of  due  care,  it  was  held  that,  notwithstanding  the  fact 
that  the  passenger  carrier  owed  the  highest  possible  degree  of  care  to  his 
passengers  to  avoid  the  collision,  so  as  not  to  expose  them  to  injury,  he  was 
only  bound  to  exercise  the  care  of  a  prudent  owner  towards  the  owner  of  the 
other  boat,  and  could  only  be  held  responsible  for  want  of  that  degree  of 
care.     Ph.,  W.  &  Baltimore  Railw.  v.  Kerr,  25  Md.  521. 

44 


690  APPENDIX  OF  LATER  CASES. 

The  burden  of  proof  in  this  class  of  cases  is  upon  the  plaintiff  to  show 
that  his  injury  resulted  from  the  want  of  ordinary  care  upon  the  part  of  the 
company.  Baltimore  &  Ohio  Railw.  v.  Bahrs,  28  Md.  647.  The  company 
is  bound  to  exercise  such  care  in  moving  trains  about  the  city  of  Baltimore 
as  a  prudent  person  would,  having  equal  reference  to  the  despatch  of  the 
business  of  the  company  and  the  safety  of  others.  Bannon  v.  Baltimore  & 
Ohio  Railw.,  24  id.  108.  The  infancy  of  the  person  injured  will  not  affect 
the  duty  of  the  company.     lb. 

A  railway  company  is  not  bound  to  keep  a  flagman  at  a  road  crossing  to 
give  travellers  notice  of  the  approaching  train.  It  is  only  bound  to  run  its 
trains  in  a  «areful  and  prudent  manner,  so  as  not  needlessly  to  inflict 
damage  upon  others.  But  it  may,  by  having  kept  a  flagman  at  a  road  or 
street  crossing,  have  so  far  excited  the  public  expectation  of  being  warned 
of  danger  in  that  mode,  as  to  make  it  an  act  of  negligence  on  the  part  of  the 
company  to  withdraw  the  flagman,  for  which  the  company  would  be  held 
responsible  where  injury  occurred  in  consequence.  Ernst  v.  Hudson 
River  Railw.,  39  N.  Y.  61. 

Case  illustrating  the  proper  degree  of  care  to  be  exercised  by  the 
driver  of  street  cars,  as  well  as  by  the  owners  of  other  carriages.  Cook  v. 
Met.  Railw.  98  Mass.  361. 

The  effect  of  certain  kinds  of  contributory  negligence,  as  being  in  a  car- 
house,  without  the  knowledge  of  the  railway  employees  ;  or  attempting  to 
cross  a  railway  track  where  a  train  is  within  forty  feet,  is  considered  in 
Lehey  v.  Hudson  River  Railw.,  4  Rob.  (N.  Y.)  204  ;  Schwartz  v.  The  same, 
id.  347.  The  plaintiff  was  held  in  both  these  cases  not  entitled  to  recover, 
by  reason  of  such  negligence  on  his  part.  See  also  Ernst  v.  Hudson 
River  Railw.,  39  N.  Y.  61  ;  Edgerton  v.  N.  Y.  &  H.  Railw.,  id.  227. 

If  a  railway  construct  an  open  crossing  at  the  intersection  of  a  way  laid 
open  by  dedication,  so  as  to  become  public,  they  are  bound  to  maintain  it  in  a 
safe  condition  for  passing.  At  road  crossings,  both  the  railway  company  and 
travellers  are  bound  to  exercise  care  to  prevent  collisions.  The  traveller, 
in  approaching,  is  bound  "  to  stop,  look  out,  and  listen,"  and  if  he  fails  to  do 
so  he  cannot  recover  for  any  damage  he  sustains  by  any  collision  with  the 
company's  trains.  So,  too,  if  the  traveller  by  defect  in  the  crossing  is 
stopped  upon  it,  he  must  do  all  in  his  power  to  notify  any  trains  which 
may  approach,  and  to  extricate  himself  as  soon  as  possible,  and  if  he  fails  in 
either  particular,  and  that  contributes  to  his  damage,  he  cannot  recover. 
And  it  is  the  duty  of  the  company  on  approaching  a  crossing  to  give  all 
notice  of  their  approach  by  the  usual  signals,  and  to  look  out  for  objects  at 
the  crossing,  and  if  any  thing  is  seen  to  stop  the  train,  as  speedily  as 
possible.  Pittsburgh,  Ft.  Wayne,  &  Chicago  Railw.  v.  Dunn,  56  Penn  St. 
280.     See  also  Baltimore  &  Ohio  Railw.  v.  Breinig,  25  Md.  378. 


APPENDIX  OF  LATER  CASES.  691 

DIRECTORS. 

Directors  retponsibU  for  the  atUhority  they  assume. 

The  duty  of  the  directors  of  joint-stock  companies  to  serve  the  interests 
of  the  company,  and  their  responsibility  in  making  contracts  on  behalf  of 
the  company,  has  been  considerably  discussed  in  the  Knglish  courts  of  late. 
In  Colonial  Bank  of  Australasia  v.  Cherry  &  McDougall,  17  W.  R,  1031, 
the  Judicial  Committee  of  the  Privy  Council  held,  mainly  upon  principle 
and  the  authority  of  Mr.  Justice  Story's  Agency,  that  when  the  directors 
assume  to  act  on  behalf  of  the  company  they  impliedly  warrant  their  au- 
thority to  bind  the  company.  And  where  directors  stated,  without  inten- 
tion to  deceive,  that  they  had  appointed  an  agent  with  certain  powers,  and 
they  had  not  in  fact  authority  to  give  any  such  powers,  it  was  held  they 
were  responsible,  without  proof  of  any  actual  warranty,  that  being  implied 
from  the  appointment  of  the  agent  to  do  the  act.     Ilv 

Directors  when  responsible  for  the  act  of  co-directors. 

A  director  of  a  company  who  knows  that  his  co-directors  are  misappro- 
priating the  moneys  of  the  company,  or  are  otherwise  guilty  of  a  breach  of 
trust,  is  bound  to  take  active  and  immediate  steps  to  prevent  the  same,  by 
notification  to  the  shareholders  or  otherwise ;  or  if  he  cannot  prevent  the 
same  without  filing  a  bill  in  chancery,  to  do  that,  and  if  he  fails  to  do  this 
he  will  be  held  to  have  concurred  in  the  breach  of  trust,  and  will  be  held 
responsible  accordingly,  notwithstanding  any  amount  of  mere  protest  against 
the  proceeding.  And  a  director  who  signs  checks  to  the  prejudice  of  the 
company  cannot  be  excused  on  the  ground  that  it  was  done  as  "  a  matter  of 
routine  "  or  as  "  a  ministerial  act."  Joint  Stock  Discount  Co.  v.  Brown,  17 
W.  R.  1037. 

Power  of  directors  and  duty  of  courts  in  controlling  their  action. 

The  directors  of  a  railway  corporation,  acting  in  good  faith,  have  power 
to  issue  convertible  bonds  in  the  name  of  the  corporation,  for  the  amount 
they  may  borrow  to  complete  and  finish,  or  to  operate  the  road,  with  the 
right  to  authorize  their  conversion  into  stock,  although  it  increases  the 
amount  of  capital  stock  beyond  that  fixed  by  the  charter.  And  that  being 
so,  the  right  of  the  directors  to  issue  stock  in  conversion  of  such  bonds  is 
clear.     Belmont  v.  Erie  R.  R.  Co.,  52,  Barb.  637. 

If  the  court  were  satisfied,  however,  that  bonds  were  about  to  be  issued 
by  the  directors  of  a  corporation,  not  for  the  payment  of  money  actually 
borrowed  for  the  purposes  authorized  by  the  charter,  but  as  part  of  a 
fraudulent  device  to  increase  the  stock,  the  issuing  of  them  might  be  re- 
strained by  injunction.     lb. 


692  APPENDIX   OP  LATER  CASES. 

So  while  the  bonds  remain  in  the  hands  of  any  persons  affected  with 
notice  that  they  do  not  represent  a  honafide  indebtedness,  but  were  issued 
with  such  fraudulent  design,  the  issuing  of  stock  in  conversion  of  them 
may  also  be  enjoined.     lb. 

To  enable  a  stockholder  in  a  corporation  to  maintain  an  action  to  re- 
strain the  directors  from  the  exercise  of  their  corporate  powers  and  for  the 
appointment  of  a  receiver,  the  risk  and  responsibility  must  be  upon  him  — 
so  as  to  afford  a  guarantee  that  he  is  acting  for  the  benefit  of  the  company. 
If  it  appears  that  other  persons  whose  interests  are  hostile  to  those  of  the 
company  have  agreed  with  the  plaintiff  to  bear  and  pay  the  expenses  of 
the  litigation,  any  relief,  especially  upon  an  interlocutory  motion,  will  be 
refused.     lb. 

Although  a  stockholder  of  an  incorporated  company  may  have  an 
injunction  to  restrain  illegal  acts  of  the  directors,  and  in  certain  cases 
he  may  have  a  receiver  appointed  of  a  particular  fund  the  proceeds  of  an 
unlawful  act,  yet  where  the  complaint  makes  no  case  for  any  partial  re- 
ceivership, but  while  neither  charging  insolvency,  nor  asking  to  dissolve 
and  wind  up  the  company,  prays  "  that  a  receiver  may  be  appointed  of 
all  and  singular  the  funds  and  books  and  papers  and  rights  of  action 
of  such  company,"  the  court  is  not  authorized  to  appoint  a  receiver,  the 
effect  of  which  would  be  to  remove  all  the  directors.     lb. 

A  court  of  equity  has  no  visitorial  power  over  corporations,  except  such 
as  may  be  expressly  conferred  on  it  by  statute.     lb. 

An  action  will  not  lie  in  behalf  of  a  stockholder  in  a  corporation  and  its 
directors  to  remove  the  directors  and  appoint  a  receiver  of  all  the  prop- 
erty, rights  of  action,  and  records  of  the  company,  and  for  an  injunction, 
upon  allegations  of  misconduct  in  a  part  of  the  directors  only,  in  which  the 
others  are  not  charged  with  participating  —  except  that  they  are  \mder  the 
influence  of  the  former.     lb. 

The  misconduct  of  some,  or  even  all,  of  the  directors,  affords  no  ground 
for  taking  away  the  right  of  the  stockholders,  who  constitute  the  company, 
either  by  dissolving  the  corporation,  or  taking  away  its  management  and 
placing  it  in  the  hands  of  an  officer  of  the  court.     lb. 

The  dviy  of  the  directors  to  serve  the  interests  of  the  company. 

This  duty  is  so  imperious  and  unyielding,  that  no  contract  made  by  one 
of  the  directors  of  the  company  to  accept  the  assignment  of  a  portion  of  the 
contract  for  construction  without  the  knowledge  of  the  company  can  be 
upheld.  And  the  fact  that  no  injury  accrues  to  the  company  in  conse- 
quence will  make  no  difference.  Flint  &  Pere  M.  Railw.  v.  Dewey,  14 
Mich.  477. 


APPENDIX  OP  LATER  CASES.  693 


Directort  personally  responsible  to  refund  money  expended  by  them  in  "  rig' 

ging  the  market." 

By  this  is  understood  purchasing  shares  above  par  for  the  purpose  of 
raising  the  credit  of  the  shares.  Land  Credit  Co.  of  Ireland  v.  Lord 
Fermoy,  17  W.  R.  562. 

So,  too,  all  the  members  of  a  committee  of  directors  are  responsible  for 
the  loss  of  money  which  one  of  their  number  has  misapplied,  if  the  money 
went  into  his  hands  with  the  consent  of  the  others.  Ottoman  Co.  v.  Far- 
ley, id.  761. 


MANDAMUS. 


It  will  not  lie  when  the  statute  has  provided  another  adequate  remedy. 
Louisville,  «&c  Railw.  v.  State,  25  lud.  177. 

The  remedy  is  discretionary,  and  will  pever  be  awarded  where  there 
is  another  sufficient  remedy.  People  v.  Hatch,  33  111.  9.  The  applicant 
must  show  a  clear  legal  right  to  the  redress  sought.     lb. 


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